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Mediation - Inside

Sending grievances to mediation is fast becoming a common practice among unions and employers across Canada. In some provinces, the provincial government provides grievance mediation services. In others, dozens of lawyers, arbitrators, and other labour relations practitioners are setting up shop as mediators and charging a good buck for their services. As a union member, you may well one day find yourself filing a grievance that ends up at mediation. Here's a brief description of the process, some insight into its booming popularity and what you can do to help protect your interests if you end up in it.

What is mediation anyway?

Mediation is a process where the parties to a dispute (in labour relations, the employer and the union) invite a third party (the mediator) to help them resolve their differences. In labour relations, mediation is becoming very common - an optional step between the last step of the grievance procedure and arbitration (mediation is not a replacement for arbitration). Many unions and employers have written mediation into their collective agreements. Some have become so accustomed to using it that virtually all of their grievances go to mediation.

Labour relations mediation is a simple process. Once a grievance has gone through the grievance procedure, the union and the employer can agree to try mediation before the grievance goes to arbitration. In some jurisdictions, the mediator is appointed by the Ministry of Labour (in those provinces that offer a government-sponsored mediation service) while in others, the mediators are private practitioners. In these cases, the union and employer representatives choose the mediator.

Mediation is a completely unregulated field. Mediators don't need to have any special training or credentials - they only need to be "acceptable" to both parties. Most labour relations mediators have some background in labour relations or in labour law. Some are former management labour relations officials, others are former union reps, still others are labour board vice chairs, retired judges, labour lawyers with a mediation practice on the side and so on. Many arbitrators also practice as mediators. Mediation can take place any time right up to and sometimes, during the course of the arbitration hearing. In some cases, arbitrators will attempt to mediate a grievance prior to commencing a formal hearing.

Many management and union officials tout mediation as a wonderful thing. It's supposed to allow for "win-win" settlements in an atmosphere of trust and good will and it's faster and less costly than arbitration. Over the past several years, mediation has become a trendy thing in the labour relations community - cost effectiveness seems to be the main reason. The win-win, trust-and-goodwill stuff is secondary.

For the union, grievance mediation provides certain advantages that don't necessarily translate into advantages for the member or members involved in the grievances. Simply stated, mediation allows the union to get rid of grievances it doesn't want to fight quickly and cost-effectively while giving the member(s) the impression that they've "had their day in court". What is supposed to be an informal, no risk, no obligation attempt to reach a mutually agreeable resolution in an atmosphere of trust and goodwill is turned into a sort-of-hearing without any of the elements of due process and where a sort-of-decision will be rendered off-the-cuff by a rent-a-judge hired by the company and the union. The member goes along thinking they've received justice - of some kind.

Not all unions use the process this way but some certainly do. They are able to get away with it largely because most members are unfamiliar with the distinctions between mediation and arbitration. Mediation tends to be described in very ambiguous and confusing terms - sometimes as something similar to arbitration (which it's not). Union members who are unfamiliar with the various stages of the grievance-arbitration process may be told that the mediator will "hear" the grievance and "make a ruling" or will "make recommendations" as to what the union should do with the grievance. Some members show up at a mediation meeting thinking that they are actually attending the arbitration hearing. Believing that the mediator has more authority than s/he actually has, members are open to all kinds of manipulation.

If you have or may have a grievance in the works, there's a fairly good chance that you may end up in a mediation meeting at some point. It's important that you understand what this process is - and is not - about.

Mediation and arbitration are two separate and distinct processes that differ in significant ways:

  1. Mediation is an informal, off-the-record process that is supposed to give the parties a last kick at finding their own resolution to a grievance. Arbitration is a formal legal proceeding where the issue(s) raised in the grievance are decided by an arbitrator or board of arbitration that has the authority to issue a final and binding ruling.
  2. Unlike an arbitrator who has the authority to make a final and binding decision (ruling) on the grievance, mediators have no such powers. The mediator's role is to act as a facilitator or problem-solver. They are supposed to listen to both sides of the story and get a sense of what it might take to resolve the grievance and work with the two sides to bring about a settlement that both can live with.
  3. Unlike arbitration hearings which are formal legal proceedings (much like court proceedings), mediation meetings normally take place in confidence and on a without prejudice basis. This means that by agreeing to mediate and entering into discussions about resolution, neither side is changing its official position on the grievance or acknowledging guilt or liability. If there's no deal at mediation, the union is free to advance the grievance to arbitration and nothing that was said during the course of the mediation meeting can be used against one side by other at the hearing.
  4. Since the mediator is only a facilitator and does not make any formal rulings, the parties are free to work out whatever deal is acceptable to them. The parties can't agree to something that violates the law but beyond that there are no rules as to what the settlement has to be. This is most unlike arbitration where a ruling is made on the basis of the evidence and legal arguments presented by both parties.
  5. At arbitration, the hearing is conducted in a very formal manner (like a court). The parties address the arbitrator through their designated representatives (usually lawyers). Mediation is much more informal. Who participates in the discussions and to what extent is usually up to the representatives of both sides. Some unions allow the griever to be very involved in the discussions while others don't. Similarly the union can decide whether or not the griever is to attend the mediation meeting.

Why mediation got hot:

The reason for the boom in popularity of mediation is that it's cheaper than arbitration and allows the union and the employer to control the outcome of the grievance to a much greater extent than they can at arbitration. While mediation in and of itself is not bad or wrong or disadvantageous to union members (it can actually be helpful depending on the circumstances), it can and sometimes is used as a way of getting rid of grievances that the union has no desire to fight - cheaply and efficiently. Mediation is frequently used in the case of persistent or militant members, people who just won't accept when their union reps tell them that their case is a lost cause or that they should accept the company's offer to settle or those who just plain old insist on justice (that their grievance go the distance to a hearing). Rather than make the decision to withdraw the grievance or to settle without the griever's agreement (something that could lead to unfair representation charges), the mediator is brought in to get the griever to back off or to accept a deal that has already been made between union and management officials in the back room.

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