Impasse and Grievance Resolution

Harry Kershen

• Publisher: Routledge
• Year: 2019
• Print ISBN: 9780895030016
• eBook ISBN: 9781351843638
• Topic: Politics & International Relations
• Subtopic: Mental Health in Psychology
• Index: Politics & International Relations

Praised by reviewers as a superior book in the field of public sector bargaining, "Impasse and Grievance Resolution" is the classic "how to" text for the resolution of new contract disputes and ongoing contract grievances. Comprehensive, up-to-date, full of good practical advice. "Impasse and Grievance Resolution" is the ideal addition to your own professional library.

PART I

RESOLVING BARGAINING IMPASSES

The techniques available for resolving impasses that arise during the negotiating process range from the relatively mild and weak to the strong and powerful. Along this continuum, mediation is the mildest, fact finding a bit stronger, and arbitration—whether called final-offer arbitration or some other term—is the most powerful. Within this procedural thicket, variations can and do occur—supermediation takes place in some jurisdictions, and arbitration may be voluntary or compulsory.

The articles in Part I deal on several levels with these techniques. Becker describes what an impasse is and covers the techniques thoroughly, supplying a good overview to this section and the entire volume. Liebowitz’ paper describes the day-to-day work of a mediator: how he operates, on what he bases his recommendations, and so on. The article by Word on fact finding in New Jersey concludes that fact finding is relatively ineffective, leading directly into the following article on strengthening fact finding and the fact finder’s role.

Since this part of the book follows the continuum of resolution techniques from weak to strong, the remaining articles in this part involve arbitration. Bellman and Graham suggest consideration of final-offer arbitration, which may be either voluntary or binding, while Fox and McDonald make the case for compulsory arbitration. The following two papers describe how compulsory arbitration has worked in Rhode Island and Michigan. Loewenberg discusses the recurring fear that compulsory arbitration will have a detrimental effect on collective bargaining. His research indicates that such fears are generally unfounded, since compulsory arbitration, properly delimited, has been used successfully in a number of jurisdictions here and in Canada without negative impact on the negotiations process or its end result, the agreement.

CHAPTER 1

Public Sector Mediation: Some Observations on Technique

JONATHAN S. LIEBOWITZ

Attorney At Law
New York, N. Y.

Being a labor mediator is a tough job. It is a demanding one in any area of labor relations, and in public employment it is complicated by a host of special circumstances: strikes by public employees are prohibited by law in most states and limited in the others; public employers are financed out of tax revenues and, thus, necessarily concerned with public budget planning and accountability; employer and employee organizations differ in many ways from those in the private sector; the public employment statutes, and the rules made under their authority, are still relatively new and untested.

In New York under the Taylor Law (1967), in Connecticut under Public Acts 811 and 159 (1969, 1965), in New Jersey under Chapter 303 (Laws of 1968), and in Pennsylvania under the Public Employee Relations Act (1970), experience is just in the process of being accumulated. With this reservation in mind, the purpose of this article is to set forth some observations that are generally applicable to public sector mediation.

To begin with, it is important to bear in mind that a mediator may tie but not bind; he must be a persuader, an arguer to good effect; unlike an arbitrator, he lacks power to require the parties to do or agree to do anything. His power is solely in the confidence he inspires, in the resourcefulness of his approaches, and in his ability to expound them convincingly. This factor more than any other makes mediation such a challenge to the professional in the field.

Success in mediation means settling disputes. Qualifications which aid in reaching this goal include a good working knowledge of labor relations practices, and especially of the making and operation of collective bargaining agreements, and experience in confronting and dealing with different kinds of labor disputes. Add to these ability to work under pressure, to size up conflict situations and to grasp their causes and potential solutions, and sound judgment as to the three W’s: whether to propose a solution, what to propose, and when to propose it.

There is no rule book; experts in mediation use widely varying approaches with success. They agree, however, that the negotiators must be led to see that any settlement will be their settlement. They can and should take credit for it—and often use the mediator as a buffer or explanation for having to make concessions—and they must not only accept and live with a settlement, but also take responsibility for “selling” it to their respective constituencies as the best possible settlement under the given circumstances. It is obvious, but often overlooked in the heat of controversy, that the parties will be “living together” long after the particular dispute is resolved.

With this last point in mind, an effective mediator thinks constructively. He can be of great value in hearing out, absorbing, deflecting, and reforming into positive ideas the tensions and even animosities which often arise in labor relations situations. To do this requires an attitude that is hard to achieve: a mediator must be committed and sympathetic to the parties and their interests in the dispute, but he must also have sufficient detachment to avoid becoming enmeshed in the issues and to influence the usually considerable energies of the parties in the direction of settlement. Fresh approaches and compromise without loss of face must be in the air, and it is up to the mediator to project them and thus to create an atmosphere for settlement.

It follows that a good mediator is a reflective sort. He thinks a great deal, and ahead of the present moment and in alternatives. He anticipates conflicts over issues and how they will surface, and he strives to have several approaches ready to venture at the right time, arranged in his mind according to his judgment of their relative importance and likelihood of being acceptable to the parties.

In familiarizing himself with the impasse at hand, the mediator makes sure he is on working terms with the statute and the rules and decisions under it as they may affect the case. Then too, he knows more than a little about the community in which he is working. He reviews the fiscal and bargaining history. He hears the positions of the parties and their reasons for them; he learns what the issues are and acquires a feeling of how important each is to each side. In doing so, he acquaints himself with the personalities of the negotiators and forms ideas of how to deal with them effectively and in the context of the politics of the situation. Then he builds upon the progress the negotiators have already made (hopefully, there is some) toward his goal: a settlement.

There are many political concerns to be taken into account. A mediator in a public employment dispute deals with people involved in several layers of relationships: that of the negotiators on each team with their colleagues and with those on the other side; then, the relationship of each team of negotiators with the constituency which they represent, such as the members of a Union or of a Board of Education or municipal body; and finally, that of both teams of negotiators to the people of the community at large. In public employment, the bargaining issues are arrayed against and entwined with this ever-present background; a mediator needs a sense of all these relationships in order to be effective.

As the above discussion implies, the writer looks at mediation from an “activist” point of view. That is to say, together with patience, impartiality, knowledgeability, and a reasonably thick skin, the most important quality a mediator should have is an approach. This has nothing to do with preconceptions or rigidity; it entails developing, keeping in mind and projecting to the negotiators an open attitude which leads to settlement of the issues, having a plan for each mediation session and controlling the proceedings, and not being hesitant 1) to start as early as possible clearing the way to reach the basic “gut” issues on which settlement depends, and 2) at the right time, to make proposals to the parties as to how the issues can and should be resolved.

Others will doubtless disagree with this “activist” concept: they hold that a mediator should make it clear that he is ready and able to assist the negotiations in any way he can, but leave it to the parties to go on from there, remaining available but on the sidelines until called upon. The writer’s experience indicates, however, that this method is time-consuming (and often there is precious little time to consume in public sector mediation), and ineffectual. The mediator is there because the parties could not resolve the dispute by themselves; everyone is under pressure, and negotiators usually respond well to a mediator with a mission. The more directly the mediator can move the parties toward the goal of settlement, the better for all.

A recent dispute between a school board and a teachers’ association provided an opportunity for positive mediation to work. The impasse was mainly over salaries, but there were other issues over which feelings were running high. The parties had been making little if any progress in their joint meetings.

The mediator began by meeting with each side separately to hear its position, keeping the negotiating teams apart from each other. Then, by reviewing the problems with each side and suggesting solutions to them, he succeeded in tentatively eliminating the non-salary issues which had become irritants. Next, he went on to formulate and advance a series of approaches to the impasse over salaries, and by a lengthy process of discussion, evaluation, and reformulation in separate meetings with the negotiators, he aided in bringing forth a solution which each side could accept as fair and reasonable.

This procedure required a great deal of patient listening and considerable legwork. All alternatives were thoroughly aired with each party, and only when each was committed to the terms of a settlement did the mediator bring them together. The final joint meeting was devoted to “wrapping up” the settlement, and because it was conducted at this level, much of the resentment generated over the long course of bargaining was dissipated.

Here then was one approach to a particular situation; each impasse is different, and a mediator must have flexibility and an almost endless variety of resources ready at hand for use as called for.

But in every dispute a focus on defining and redefining priorities, narrowing issues, remaining flexible in negotiations, and not taking positions which may become “frozen” and thus difficult to change—all are essentials which the mediator must encourage.

An important and recurring problem is when to bring the negotiating teams together face-to-face. A joint meeting may be useful at the outset to get things moving, to clear away underbrush issues and to clarify the negotiators’ positions on the really tough issues, and useful, too, at the conclusion to iron out final details of settlement and to generate an atmosphere of agreement and continuity.

At other times, the problem is a matter of judgment. For example, where the parties have already met long and often, and advanced and modified their positions considerably before mediation, there may be little advantage in reviewing “laundry lists” of positions on issues. In this kind of situation the negotiators may need to maintain for the benefit of their respective constituencies an image of giving nothing more away. On the other hand, some situations will call for joint meetings well along into mediation, such as to permit parties who have done little real negotiating to learn about and interact with each other across the table. In all cases, the mediator had best be skilled in the timing and use of that invaluable device—the caucus.

The qualities of patience and resourcefulness have been mentioned above, and they deserve emphasis. Just when the negotiators become tired and uncreative, and negotiations drag or become abrasive, there is the mediator’s cue to come forth with a steady, fresh approach. Neither fatigue nor the rough edges of personality should be permitted to keep the discussions from moving toward resolution of the issues. A mediator should even be prepared to weather some hard going himself to keep things moving. But he can take comfort in the knowledge that with a combination of persistence, sound technical knowledge, and a positive viewpoint, he stands a good chance of success.

Discussion Questions

1. The author describes a number of attributes a mediator should have. Discuss these and give reasons why they are or are not valuable characteristics in this function.

2. How necessary is it for a mediator to be familiar with statutes, case precedents, and rulings, since he will not be making a binding decision?

3. What are the consequences liable to be if a mediator confronts only the obvious issues on the table?

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Table of contents

• Cover
• Title Page
• Copyright Page
• Table of Contents
• Preface
• Acknowledgements
• PART I RESOLVING BARGAINING IMPASSES
• PART II RESOLVING STRIKES
• PART III RESOLVING GRIEVANCES