Attendance of Mediation by Union Representatives

From
Arnold W. Zeman’s blog

In this post, I try to respond to the questions put to me as a transformative mediator by David Bleiman, a Scottish union official, in his comment on my post, “Stages in the Mediation Process”.

David has asked how a transformative practitioner would handle these two situations:

1. a union representative accompanying an employee to a mediation, and
2. an employee who wishes her union official to speak on her behalf in mediation.

Neither of these is particularly problematic for the transformative mediator. And this is because of our view of the goal of mediation.  For us, the goal is not facilitation of an agreement decided on by the parties.  Getting the parties to reach a settlement does not drive our practice.  We have nothing against the parties coming to an agreement as long as it is their decision free from any suggestion or subtle direction by the mediator.  It’s just that we don’t believe ‘getting to yes’ is the only or even the paramount value of a mediation, particularly when it is not autonomously decided by the parties.

The goal of transformative mediation is to support the parties in having the conversation they want to have in whatever way they wish to have it.  Yes, but doesn’t this lead to pretty heated, disruptive and non-productive processes.  It may, but that is the decision of the parties.  Our experience has been that when the mediator follows the party to the edge of the cliff, the party often decides not to jump.  And when they do, we believe we ought to respect their decision.  Surprisingly for some, parties in transformative mediation often reach whole or partial agreements–when that doesn’t occur, parties often report satisfaction with the mediation process in any case.  They feel clearer and stronger, more capable of handling the particular conflict they’re in as well as future conflicts.

It is this goal and the value we place on self-determination that drives how we would handle the situations above.  For the mediator, a union representative accompanying or speaking on behalf of the employee is just one other participant in the conversation.  The transformative mediator would support their expressing their concerns and goals, their deliberation of their options, resources and decisions faced, just like any other participant in the conversation.  Skeptics who think this could not possibly be effective are encouraged to view the training video “Family Ties”, where a very experienced transformative practitioner mediates a dispute between a grandmother (accompanied and at times represented by her lawyer) and her daughter-in-law about access to her grand-daughter.

Note that I stipulated these situations would not be an issue for the mediator.  It may be, however, that the other party to the mediation would object to the presence of a representative in the process.  In transformative mediation, this would be handled as part of the conversation itself, for the two parties to talk about and decide on.  Needless to say, if the other party continued to object, the mediation would either not go forward or would proceed without the presence of the representative, again a decision for the participants.  At least, that is how the general case would likely be treated.  In the specific case of transformative workplace mediation where there are collective bargaining agents, there would likely be policies providing for the presence and participation of representatives in the process so none of this would arise.  As an example, refer to the United States Postal Service’s REDRESS® program policies wherein it states: “The employee and supervisor each have an opportunity to bring a representative to mediation.”

I am grateful to David for the opportunity to offer the transformative perspective on the important issues he has raised about collective bargaining and workplace mediation.

                       

Arnold W. Zeman

After over 33 years in the public service of Canada, the last 20 of which as an executive, I retired from government in 2006 to pursue my passion to help people resolve their differences non-adversarially. I have been trained by the best in the field in both the public and… MORE >