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<xTITLE>Using Mediation Effectively</xTITLE>

Using Mediation Effectively

by Norm Brand
September 2000 Norm Brand

Mediation can be a powerful tool for settling disputes. The recent Teamsters strike at UPS was settled with the assistance of a mediator. The potential lawsuit over not renewing the contract of Los Angeles Police Chief Willie Williams was resolved through mediation. Increasingly, litigants are sent to mediation - where they resolve their dispute. Despite the enormous growth in mediation of private disputes, mediation does not appear to have undergone significant growth in cities, counties, and municipalities. Yet public disputes -particularly public sector disputes - are prime candidates for mediation. It is possible that many otherwise knowledgeable public officials and administrators know too little about mediation, what a mediator can do to help resolve a dispute, how to work with a mediator, or how to choose a mediator. The basics can be learned in just a few minutes of reading.

What is mediation?

Mediation is a non-binding process in which a neutral person assists the parties in resolving their dispute. The mediator has no authority to impose a settlement, and the parties can end the mediation at any time. It can be used where a public entity is being sued, or as a means for resolving impasses over the terms and conditions of employment for unionized public employees. My focus here is the latter.

In public sector collective bargaining disputes the parties frequently use the media to strengthen their positions by generating public support. This may result in taking strong public positions. Both sides can get frozen into positions that no longer reflect their current assessment, but seem impossible to move away from. Then they are stuck at impasse until the public forgets what was said, or "changed circumstances" allow each side to move. Moving the dispute into mediation makes for "changed circumstances." It can provide the opportunity for reconsideration without publicly eating your words.

The mediation process most commonly followed in public sector disputes is to hold joint sessions in which the parties explain their positions to the mediator, and private "caucuses"-- in which each side meets separately with the mediator. This format allows parties to maintain an "official" position while deniably exploring options through the mediator. The caucus gives each side the opportunity to communicate its real interests to the neutral, who can help develop options, without either side being committed to a particular option until both sides have let the mediator know it is acceptable.

Mediation is uniquely suited to resolving public sector bargaining impasses because these impasses are often the result of interlocking negotiations which reflect the many constituencies involved. On the union side there are different membership constituencies based on length of service, family needs, and specific working conditions. The union itself may face external threats through a challenge, a decertification effort, or a new public policy such as "workfare."

The public employer has many constituencies: some seeking increased services, some seeking lower taxes, some seeking both. There may be separately elected executive and legislative branches, with the former negotiating while the latter must pass the funding. Disputes over matters that have nothing to do with collective bargaining may prevent agreement on a contract. Since most of the budget is driven by labor costs, budget folks often are in conflict with human resource/labor relations people. The former may define success as imposing the cheapest deal imaginable, while the latter may define success as a productive, satisfied, competitively paid work force. In mediation internal conflicts can be addressed in caucus and each side can resolve the internal disputes in a way that allows an overall agreement to be reached.

What a mediator can do that you can't do for yourself.

A mediator is unburdened by the history of the negotiations and does not begin with any prejudices which cause him to evaluate what is being said in light of earlier statements. Rather, he can often hear what is being said far more clearly than either side. The mediator can also help legitimize each side's position. There is a reason for the impasse. Even if that reason is based upon the political dynamic of one side, it is a legitimate reason. For instance, in the recent Teamsters strike at UPS converting part-time to full time jobs was a major issue. It may well have become an issue because the Teamsters negotiated a two tiered wage scale and the number of people in the lower tier was now significant in internal union politics. Nevertheless, that is a legitimate reason and UPS was obliged to respond to the part timer issue if it wanted to break the impasse.

A mediator can also:

Advance the real interests of the parties. In caucus, the mediator can be a catalyst for each side prioritizing its remaining issues. Without changing their previously stated position, each side can explore options that are consonant with their real interests.

Help the parties invent new possibilities. The mediator may have experience from many different jurisdictions, over many years, or in the private sector. He can bring ideas to the parties that may have been successful in other places. The mediator can help the parties examine previously rejected ideas, suggest new ideas, and help start the process of invention.

Make mediator proposals. Often the problem with a particular proposal is that it came from the other side. The mediator can engage in "what if" conversations with each side ("What if they were willing to give up this, would you be willing to give that?") and create proposals that are not the proposal of either side to see if both parties can agree to them. This helps each side to respond to the merits of a proposal, rather than reacting to the party making the proposal.

Take over poisonous press relations. Sometimes the battle for public opinion gets out of hand. Even if both sides recognize that a rancorous public debate will not help resolve the dispute, neither wants to refuse comment to the reporter who has previously been helpful in getting out its side of the story. A mediator can (with the agreement of the parties) provide the sole point of contact with the press. The public is kept informed of the progress of mediation, without either side being prejudiced, and without either side alienating its own press contacts.

Change the mood. In a prolonged impasse the parties often become convinced that nothing is going to move those intransigent folks on the other side, and a mood of anger, despair, and resignation prevails. The public may be disgusted with both sides. Mediators are committed to moving out of impasse to a constructive solution. And good ones are competent to help the parties do just that.

Competent mediators have seen many disputes and can sense when a dispute is ripe for settlement. When we come into a dispute we try to focus the parties on the consequences of not settling and the inevitability of ultimate settlement. Through small agreements we help the parties overcome despair and resignation and build settlement momentum. When the public is told that a mediator has been engaged it, too, perceives that public officials and the union are making an effort to resolve the impasse.


Since 1983, Mr. Norm Brand has been engaged full time in dispute resolution. A former negotiator and law professor, he has a varied national practice, ranging from arbitrating high profile individual disputes – such as hockey player Petr Nedved’s eligibility to play in the IHL, to mediating high stakes public disputes – such as the nation’s first “pay for performance” contract in the Denver City School District.

Mr. Brand has arbitrated and mediated cases involving complex issues of law and large dollar amounts. His largest arbitration award resulted in payments of approximately $40 million.

He has served as sole arbitrator in a $50 million biotech case, and in many multi-million dollar pension cases. He mediated the model annual maintenance agreement between Sacramento Delta Reclamation Districts and the California Department of Fish and Game and a dispute over remediation of 9 Superfund sites involving 19 parties. He mediates discrimination claims for the EEOC and has mediated and arbitrated executive compensation, discrimination, and wrongful termination disputes involving Fortune 500 companies.

Mr. Brand has engaged in med-arb under statutory procedures involving state and federal entities, as well as in trust fund and trade secret cases. His primary practice has been in labor and employment law, but he has also served on specialized panels requiring scientific literacy in biochemistry, medicine, and psychiatry, as well as an understanding of research and laboratory procedures.

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