Public Sector Mediation -- a Better Way to Resolve Disputes
SPEAKER’S OUTLINE
CONFLICT RESOLUTION:
NEGOTIATION AND MEDIATION OF WORKPLACE DISPUTES
Presented by
Bruce S. Feldacker
Attorney/Mediator
Feldacker and Durbin, P.C.
laborlaw@anet-stl.com
www.mediate.com/feldacker
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I. What is Employment Law?
A. Workplace disputes arise in the context of the underlying employment laws and regulations. However, in a sense, there is no such thing as “Employment Law”.
1. Employment Law is a combination of State and Federal constitutional and statutory provisions; civil service codes; and contract rights – either under individual contracts or collective bargaining agreements.
B. The key Federal statutes that apply (see Appendix p. A-1) include Title VII of the Civil Rights Act; the Americans With Disabilities Act; the Age Discrimination in Employment Act; the Fair Labor Standards Act; and the Family and Medical Leave Act.
C. State employees may either have Civil Service protection or be “employees-at-will”. However, unlike private sector employees, public employees do not “check their constitutional rights at the door.” Their constitutional rights may include:
1. Privacy.
Public employees may have a certain reasonable expectation of privacy at work. The state employer’s right to run an agency efficiently is balanced against the employee’s reasonable privacy interests, both objectively and subjectively.
2. Freedom of Speech.
An employee has a (limited) right to speak out to the public, even on matters concerning his/her employment, on issues of “public concern.” Again, there is a “balancing test” of employment efficiency vs. constitutional interests.
D. Under the Fourteenth Amendment to the United States Constitution, a state employee may have a constitutional right to a hearing before being terminated, either as a “property” right (employees with a statutory or contractual right or reasonable expectancy of future employment) or as a “liberty interest”, such as the right to a good reputation (freedom from defamation on the job).
E. Even if a state employee is an “employee-at-will”, the public policy exceptions to the at-will doctrine that have developed in the private sector may apply in the public sector as well.
1. Thus, it may be unlawful to terminate or discipline a “whistler-blower”.
F. Be careful of retaliation. Taking adverse action against an employee who has complained that his/her rights have been violated may be unlawful even if the underlying complaint is without merit. Don’t turn a “bad case” into a “good case”.
II. Why Mediate (or Use Other Resolution Techniques) Employment Disputes?
A. Considering the multiple issues that may arise in disputes between a public employer and its employees, the reasons for attempting to resolve such disputes through mediation or other Alternative Dispute Resolution (ADR) techniques is virtually obvious. They include:
1. Catching problems early before they become big issues or quickly clearing up a simple misunderstanding;
2. Opening lines of communications between the employer and the employee that may have become “frazzled”;
3. Keeping a valuable employee who might otherwise leave the agency;
4. Allowing an employee to “vent” if the employee is unhappy at work (this may reduce the likelihood of workplace violence);
5. Providing a means of discovering supervisors who may not be doing their job properly (sometimes it is the supervisor who is wrong, not the employee);
6. Keeping proceedings confidential (ADR processes may be excluded from state public record or open meetings requirements as a confidential personnel matter);
7. Enabling the parties to derive solutions for a problem that might not be possible in
formal litigation;
8. Using proceedings that are fast, efficient, and less expensive.
III. The Methods for Mediation.
There are different methods of applying the mediation process, and multiple names that are applied to them. However, the most generally accepted methods are:
A. The Facilitative Approach.
· Under this method, the mediator serves as a “facilitator,” assisting the parties in the resolution of their disputes. The mediator does not “take sides” or suggest solutions; rather he/she assists the parties in assessing their own interests, the strengths and weaknesses of their case, and possible resolution. Exploring these issues ultimately leads to a mutual resolution of the dispute satisfying both parties.
B. The Evaluative Approach.
· In this method, the mediator, after thoroughly exploring the interests of the parties and the issues, suggests a possible solution based on the mediator’s judgment as to the underlying merits of the dispute. However, the mediator’s suggestion is not binding on the parties.
C. The Transformative Method.
· This method concentrates on the underlying “attitudes” of the parties toward each other. The mediator tries to have each party gain a better understanding of the reasons for which each party acted as it did and to develop greater mutual respect between them. Transformative mediation is more concerned with developing greater understanding and mutual respect than resolving the underlying dispute.
D. Collaborative Mediation.
· In this method, the parties pledge to continue the dispute resolution process until they reach an agreement. They agree not to go to court or to an outside administrative agency to resolve the dispute. If there are lawyers involved, the lawyers agree to withdraw from the case if they are unable to reach an agreement.
E. Early Neutral Evaluation (ENE).
· This is a more formal dispute resolution method in which the neutral hears the dispute in much the same manner as a judge. However, each party summarizes their position without the need to produce underlying witnesses or produce all documents. The neutral evaluator gives his/her opinion as to the likely outcome of the case in court. This may lead the parties to reach an agreement based on the evaluator’s opinion as to the likely outcome.
III. Preparation for Mediation.
A. Be sure you understand the facts of the dispute.
B. Think ahead about:
1. The strengths and weaknesses of your position and that of the employee;
2. Your answer to the issues that the employee will raise;
3. All the possible solutions to the dispute;
4. The agency officer who must eventually approve the settlement. Keep that person informed as the case progresses, or have that person present;
(a) If someone “higher up” must approve the settlement, make sure the employee knows that at the outset.
5. Whether you will need an expert’s help in the mediation (such as the agency comptroller or pension specialist). If so, have that person present or readily available.
C. Set aside enough time for the session. Most disputes take longer to resolve than you think they will.
D. Have a confidential location for the mediation, out of general employee view.
E. Have a proposed resolution with you on disk so that you can put the
settlement into writing immediately if an agreement is reached.
F. If you are going to have a team take part in the mediation process, ma
Sure that all members of your team are briefed on the facts and the issues,
and that they understand the mediation process.
G. Come to the mediation with the key documents involved in the dispute, such as copies of relevant regulations or correspondence.
H. If the employee is represented by a union, depending upon state law or
your labor agreement, the employee may be entitled to have a union representative present at the mediation. Be sure to keep the union informed as required.
IV. Keys for Success in the Mediation Process.
A. Come to the mediation session with a positive attitude that agreement is likely;
B. Be realistic in your assessment of the case, the likelihood of prevailing if the matter were to go to court and the amount of the potential recovery if the employee should prevail;
C. Begin with reviewing the process; remind the employee that the process is voluntary; that there is no compulsion to reach an agreement; and that the proceedings will be confidential;
D. Have a prepared opening statement clearing stating your understanding of the factual basis of the dispute and your position on the merits of the dispute (hold back on proposed remedies until later in the discussion);
E. Try to gain a better understanding of the “interests” of the other party in resolving the dispute, and look for common interests that can be the basis of resolution;
F. Maintain a climate of mutual respect at all times; be polite; avoid personal attacks;
G. Be sure to maintain the confidentiality of the process;
H. Have the decision makers present if at all possible; or readily available on the phone;
I. Allow enough time; don’t state at the beginning that you only have two hours!
J. Be truthful at all times; it is better to state that you are not at liberty to reveal a certain fact or provide a certain document than to lie about the fact;
K. Be patient and don’t give up hope. There may be “ebbs and flows” during the day. Cases that appear hopeless at times frequently settle. Don’t walk out too soon!
L. Be flexible as to remedy.
1. Sometimes money is not the key issue; just allowing sufficient time for
“venting” by the employee or a simple apology may be sufficient;
2. Think about changing a termination into a voluntary resignation; offering a positive letter of reference or purging adverse information in a personnel file as part of the solution;
3. Think ahead about the manner of payment:
· How long will it take to issue a check?
· Will the payment be characterized as back pay or compensatory damages (back pay payments and compensatory damages are both taxable, but there is no required withholding from compensatory damage payments).
V. Beginning Your Own Agency ADR Program.
A. There are many resources available for you to start your own dispute resolution program. You can start with an “in-house” dispute resolution officer or a more formal program using either mediators provided by your state’s mediation office if it has one, or from outside agencies such as the Federal Mediation and Conciliation Service (FMCS), the American Arbitration Association (AAA), or the Association for Conflict Resolution (ACR) (See contact information in the Bibliography, Outline, pp 8-9).
1. The National Policy Consensus Center may be able to provide you with information about ADR programs (see Bibliography, Outline p. 8 for contact information).
2. Contact your local office of the United States Equal Employment Opportunity Commission. It may be willing to help.
3. Local universities or law schools which have mediation programs may provide assistance;
4. Also consider local bar associations or mediation providers.
B. Start small. Adopt a program that only covers certain departments within your agency or certain kinds of disputes, such as discrimination claims.
C. Get employee support. Hold meetings with employees to get their input before starting a mediation program.
D. If your employees are represented by a union, keep the union informed and solicit their cooperation. In some cases, depending upon your state public employee bargaining law, you may need to bargain with or reach agreement with the union before adopting an ADR program.
E. A number of interested agencies and organizations, including the American Arbitration Association, the American Bar Association, the Federal Mediation and Conciliation Service, and the National Academy of Arbitrators, have developed a due process protocol for employment arbitration and mediation. A copy of this protocol is available from the participating agencies.
1. Following the procedures set out in the protocol is fundamental to assure fairness in the process and employee acceptability.
VI. Give Mediation a Chance, You’ll Enjoy and Profit from It!
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BIBLIOGRAPHY/USEFUL RESOURCES
A. The following texts, used in the preparation of this Outline, contain very useful information on the dispute resolution/mediation process. They are available through Amazon.com and other sources:
· Beer & Stief, The Mediator’s Handbook;
· Cooper, Nolan & Bales, ADR in the Workplace (2nd Edition) (West Group 2005) (Covers both traditional labor arbitration and employment law arbitration and Mediation processes);
· Fisher, Ury and Patton, Getting to Yes: Negotiating Agreement Without Giving In;
· Kovach, Kimberlee, Mediation: Principles and Practice;
· Moore, Christopher W., The Mediation Process: Practical Strategies for Resolving Conflict;
· Reardon, Kathleen, The Skilled Negotiator: Mastering the Language of Engagement;
· Twomey, David P., “Employment Discrimination Law, a Manager’s Guide” (6th Edition, West Publishing 2005);
· Ury, William, Getting Past No: Negotiating Your Way from Confrontation to Cooperation.
B. The Association for Conflict Resolution (www.acrnet.org) has many excellent publications listed in the Publications and Resources sections of its web site. See in particular the publications entitled “Strategic Planning for Mediation” (Guidelines for setting up a workplace mediation program in a governmental situation); “Designing Integrated Conflict Management Systems, Guidelines for Practitioners and Decision Makers in Organizations,” a report by the Society of Professionals in Dispute Resolution (now merged with the ACR). Another excellent publication on the ACR web site is the study entitled “Best Practices for Government Agencies: Guidelines for Using Collaborative Agreement-Seeking Processes.”
C. The National Policy Consensus Center (NPCC) is a not-for-profit organization established by a number of state officials to encourage the growth of ADR procedures in state government. Its website (www.policyconsensus.org) contains much useful information on ADR processes as applied to state government as well as links to other interested organizations.
D. The American Arbitration Association (www.adr.org) has many excellent publications on the Dispute Resolution Process listed in the Education section of its web site.
E. The State of Maryland Mediation and Conflict Resolution Office (MACRO) conducted a study entitled “The Use of Alternative Dispute Resolution (ADR) in Maryland Business: A Benchmarking Study (2004).” Although focused on the business use of mediation, the Study would also be of use to officials considering the adoption of an ADR program within a governmental agency. Macro’s web site is www.courts.state.md.us/macro.
F. Mediate.com is a helpful website including articles on the dispute resolution process and lists of mediators/dispute resolution professionals in multiple fields and geographic areas.
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IACREOT
MID-WINTER MEETING
SAN FRANCISCO
JANUARY 22, 2006
University of Missouri-St. Louis, CCPAP MODULE 34
