Mediation - Inside
Backroom deals on grievances? No...
This is more common than you might think. Some advocates of mediation actually encourage the parties to carve out their arrangement in advance - to save time. Where a deal on a grievance has already been made, the mediator's role is primarily to sell the prearranged deal to the griever. A variety of tactics are employed to get the griever to say yes. Some mediators will present themselves as authorities on arbitration case law and flatly tell the griever that he or she is going to lose. Of course, they have no way of knowing this as, in all but a handful of areas, the case law is less than consistent and a great deal depends on what exactly takes place at the arbitration hearing. Others will tell the griever that the employer's offer is the best deal they are going to get, better even than their best-case outcome at arbitration will get them. Others will employ persuasion tactics that range from begging, pleading and cajoling to outright bullying (this is sometimes referred to by insiders as rough justice, busting heads, kicking ass - you get the picture). The name of the game is to persuade the griever that they are in the wrong or that their case is hopeless and that they are best off to back off with whatever deal they can get - in some cases no deal at all (the opportunity to withdraw the grievance is sometimes presented as a win-win).
While the mediator is typically presented as someone who is neutral, unbiased and unbeholden to either party, the reality is that they are beholden in a big way to both the employer and the union. They make their living this way. They want to be back to mediate more grievances. If the name of the game is to get some pesky member to drop their grievance, then their job is to make that happen. If they succeed, they'll be back to do more business. If they don't, they won't.
If you're going anyway...
Since your union has the right to determine what it will do with your grievance, it's the union's right to take your grievance to mediation. This doesn't automatically mean that you are about to get sold out. Your grievance may well be a difficult case to win at arbitration. If that's the situation, then it may be in your interests to pursue a settlement and get the best deal you can get rather than risk losing outright. On the other hand, if your case is relatively strong, mediation may be an opportunity to get what's important to you without the risk that goes along with arbitration. Whatever your the strength of your case, you should enter into this process with a good understanding of what it's about, what your role in it will be and, most importantly, how far you are prepared to go to settle. Here are a few considerations.
Before the meeting:
If your union has told you that it's taking your grievance to mediation, ask your union representative to explain to you very clearly:
- How will the process work? Be clear that this is mediation and not arbitration. Verify that the meeting will be off-the-record, no risk, no obligation.
- Who will the mediator be? How was s/he selected? What is his/her background? Has the union dealt with him/her before and what's been their experience with this person?
- Will you be involved in the mediation meeting? If not, why not? What kind of communication you will the union have with you about the meeting and its outcome? What input would you have?
- What kind of an outcome are you and the union seeking? Be very specific about this. Getting "the best deal we can" is a good general objective but you want to have a clear understanding with your union about what kind of deal you and they are prepared to settle for. What's the bottom line going to be? What options are available to you in terms of the kind of settlement you can pursue? This will vary depending on what the grievance is about and what's important to you but you need to know what the options are and let your union know which one(s) you're prepared to explore. (For instance, if you've got a dismissal grievance, are you going to entertain talk about a cash deal or about reinstatement or both?).
- Has the union had any indication from the employer as to what it will be looking for? If so, what is it and what will your response be?
- At the mediation meeting, what will the union's position be? What are the key points about the case? Who will be doing the talking?
- If there is no deal at mediation, find out from your union what the next steps are going to be. Are they going to advance the grievance to arbitration? What process is used to make this decision?
- If you want to bring someone to the meeting whose input you will want (like a spouse, parent, friend), work this out with your union in advance. Union reps aren't usually thrilled about having family members or friends at these meetings; however, some will allow it depending on the circumstances. If they don't, arrange for the person to be available by phone while the meeting is on.
- It's usually a waste of time and money to bring your own lawyer as the union is your legal representative and will be at the arbitration hearing.
At the meeting:
- Ask the mediator to explain the process to you (even if you already have a general understanding about it). Ask also if the meeting is being held without prejudice, if everything is off the record, what process s/he will be following today (will they meet with both sides together or separately (the norm)? How much time has been booked for the meeting (all day, a couple of hours)? If there is a settlement, will s/he write it up and get sign-off from both sides? Anything else that you're not sure about or comfortable with: ASK!
- Most mediators don't want an exhaustive detail-by-detail explanation of the background. Don't bother giving them one - they'll ignore half of what you say anyway. Get the important points about your case across (or ensure that your union rep does this if the rep is doing the talking). These are the points that you and your union rep should have discussed in preparation for the meeting. Clearly state your position (why you believe your rights have been violated) and the remedy you are seeking. Being clear is really important - you want to be sure that no mixed messages are being conveyed. Mediators are often looking for signals or clues from the union rep as to what the "real" bottom line is. If certain deals are just not on - ensure that you say so and in no uncertain terms.
- As the process unfolds, keep an open mind and avoid getting emotional. You will hear the company's side of the story and this will probably anger you. Remember to stay cool. Those who anger me, control me. If you disagree with certain facts, say so. Ensure that your facts are presented - fully and accurately to the mediator and that your preferred resolution is as well.
- The discussion will get around to settlement options fairly quickly. As you consider options that differ from your ideal settlement, ask the mediator and your union rep for the pro's and cons of each. Feel free to counter propose and be as creative as you want to be. Don't ask for things that you're never going to get (for example, management will never agree to fire a supervisor, written or public apologies are rare and usually insincere, cash settlements in dismissal cases don't involve millions of dollars...be reasonable).
- Take as much time as you need to discuss and weigh the options. Don't be pressured to make quick decisions. Rely on members of your committee (if you have one present) for advice and guidance as well as your business rep. When in doubt, nothing wrong with going with your gut. Your instincts are probably better than you think.
- If you feel that you are being bullied or pressured, say so and ask the mediator to stop engaging in this kind of behavior (you'll be doing yourself and a lot of other grievers a favor). Insist on being treated with respect.
- Remember to keep your "must have" items uppermost in your mind. Mediation generally involves some degree of compromise or tradeoff's. Giving something relatively unimportant to get something relatively important is not a bad trade off.
- If your mediator suddenly starts going on about what the arbitrator will do to you at the hearing or insists that you're going to lose, tell him or her that you thought their role was to facilitate, to be creative to look for mutually acceptable solutions. Could they do that please? You'll be cutting this tactic off in the bud and forcing the mediator to do their job - mediate.
- Don't be pressured into agreeing to something that you absolutely disagree with. At the end of the day, if you don't sign, the union has two options: (1) To decide whether or not be advance the grievance to arbitration; or (2) To settle the grievance without your agreement.
- If you have reached a resolution, ensure that the terms are set out clearly in writing. Ensure you understand the terms of settlement. The deal on settlements is if it's not in writing, it's not there.
- Make sure that you understand what can or will be communicated to others about the settlement. Is management going to talk to your co-workers about? Can you discuss it with your co-workers? Some settlements contain "gag orders" or clauses that prevent you from discussing the settlement with anybody. Make sure "confidentiality" provisions are realistic and apply to all parties.
Mediation can be a viable option for you especially where the outcome of your case is dicey or where you can achieve your must-have objectives although you may need to compromise on some nice-to-have stuff. As long as you keep a level head and remind your union and the mediator that there's that you're under no obligation, you should come out of it OK. You'll either have a deal you can live with or be off to arbitration or to your union's grievance committee. If your union settles without your OK at mediation, keep in mind that they would probably have done that anyway - and keep an eye out for our forthcoming piece about the Duty to Fair Representation.
As always, good luck. Keep your wits about you and your eye on the ball.