As I have said before, I don’t discuss my work with clients in these articles and I won’t be doing so in this article either. On that note, I had the opportunity recently to represent an Agency in a case involving the Federal Labor Relation’s Authority (FLRA)’s Collaboration and Alternative Dispute Resolution (CADR) Program which FLRA calls CADRO. Without discussing my case at all, here are some considerations for a practitioner who may be involved with this process.
On the FLRA website, the CADRO program is described as follows:
The Collaboration and Alternative Dispute Resolution (CADR) program implements one of the FLRA’s primary strategic goals to reduce litigation and its attendant costs by helping the parties resolve their own disputes with collaboration and alternative dispute resolution and labor-management cooperation activities. The program offers collaboration and alternative dispute resolution services in pending unfair labor practice, representation, negotiability, and bargaining impasse disputes at every step — from investigation and prosecution to the adjudication of cases and resolution of bargaining impasses. Throughout the years, the CADR Office (CADRO) has conducted on-site and telephone interventions in hundreds of cases pending before the FLRA. In well over 80 percent of the cases, the interventions result in either the full resolution of the underlying disputes or withdrawal of the pending case.
CADRO also provides facilitation and interest-based problem solving training to assist management and labor in developing and maintaining collaborative relationships. Recently, CADRO has placed a greater emphasis on providing external training to our clients on alternative dispute resolution, interest-based problem solving and labor-management cooperation initiatives. CADRO is now taking a more proactive approach with parties, making training materials available, providing on-site briefings with Federal sector agencies, unions, neutrals and professional organizations, and participation in seminars, conferences and meetings. In addition, CADRO provides a variety of services — including training, forum development and meeting facilitation — to management and labor throughout the Federal Government in support of Executive Order 13522, Creating Labor-Management Forums to Improve Delivery of Government Services.
CADRO may be involved in disputes over negotiability, arbitration, unfair labor practice, and representation cases. The parties to one of the above cases may certainly ask for CADRO assistance or, and I’m less sure of this, CADRO may approach the parties and offer help.
Important Basics to Understand
First off, the CADRO group you may deal with is made up of FLRA staffers assigned to that office but others, including people from other staff or member offices and interns, may be present or involved. The people I met in this process were cordial, professional and focused. I have extensive experience with the Federal Mediation and Conciliation Service (FMCS) and found there were substantial similarities and differences between the two. The mediation tactics by CADRO involved were identical to those I have seen used by FMCS. The major difference was in specific knowledge of the Federal service. Some FMCS mediators have a tough time staying awake through the minutia of Federal sector and can get lost in the complexity of Agencies, sub Agencies and regions or the difference between what’s negotiable or not but excel at understanding the nature of bargaining itself (BTW, me too sometimes). The CADRO staff thoroughly understands FLRA’s case types and issues but appears less aware about the intricacies of leverage and advantage in bargaining. In other words, I wouldn’t want to do a bargaining impasse with CADRO or try to settle an FLRA case with FMCS.
Another basic is not to lose your settlement virginity at CADRO. No Agency representative should go cold into this process. That includes counsel. Somebody with extensive experience at least in settlement before EEOC or MSPB judges or in the courts should be consulted to help out. If you don’t have access to such a person, find someone who has done a CADRO case and buy them lunch to pick their brain.
One crucial idea that should never be out of your forebrain, is that while these folks can be amicable, enjoyable to work with, smart and funny, they are not your friend in this process. They want to see the matter settled. I don’t want to be crass but you should always remember that they care not a whit about your interests or how outcomes may affect your Agency. I wouldn’t want to deal with them if they did. They will tell you (as many FMCS mediators do) that they are there to be used. Take their advice, use them to get a deal that you can live with or be ready to walk away if no acceptable deal is in the offing.
Planning for a CADRO Session
Roger Fisher and William URY suggested in their book “Getting to Yes” that one should always consider something called a BATNA or “Best Alternative to a Negotiated Agreement.” Before signing on to CADRO, ask yourself what alternatives to settling you have and the risks or rewards of not settling the case.
Don’t even think about getting involved with CADRO unless you know EXACTLY what the Agency has to gain or lose by settling; EXACTLY what authority you have once the dealing starts; EXACTLY what your Agency wants and is willing to offer; and EXACTLY who will be on your team and whether they can be relied on to follow whatever script or plan is developed. Bring a gag if they can’t shut up.
Before I go to any meeting or discussion involving conflicting views, I like to develop what I call an agenda. The agenda lists bullet points that I expect to find useful and lists attachments that are relevant and can be handed to the neutral or the other side if appropriate. In essence it’s my plan of action. My team gets a copy and the opportunity to suggest changes before we go forward. You want no surprises on your side of a table. Throughout the process go back to the team for its input and ideas and to confirm you are still on track. Of course, do this in caucus.
At the Meeting
You will likely start out separately from the other party. The CADRO people obviously want to assess your position, knowledge, sophistication. This should be exactly what you want to assess about them.
I believe there are a couple of styles in dealing with case settlement generally. You can focus on pushing the other guy’s weaknesses and waiting for the other side to break ground. If you do this, make sure the offer is coming from the other guy not the neutral. Another tack is putting an offer on the table at some point and pushing it hard. Keep in mind that the Agency sits on the money, personnel decision authority and other goodies making up the cookie jar. The power to settle a case is very important in this type of negotiation and may give you a degree of control over the process. Don’t over or underestimate that degree.
If you put an offer on the table, never counter propose yourself. If you don’t get a counter, yours is the only game in town so be patient. Let the neutral work your deal rather than theirs or the other guys if you can.
One mental thing, remember always that you represent a Federal Agency probably bigger and certainly more important than FLRA; that your Agency also has a General Counsel; that your Agency also administers laws and regulations; and, BTW, probably does real work that Americans may know about. With that, always be cordial, professional and businesslike yourself. That doesn’t mean you should not be clear, direct, and persistent, if necessary. These folks, unlike certain other Federal Agencies, cannot shave your head and send you to the sandbox but you may want or have to deal with them again.
Over the years, I have found every negotiation in which I was involved to be a learning experience. No two are the same and the complexity of each has varied greatly. The very last thing you want to do is go to a negotiation such as that with CADRO overconfident or underprepared.
All of the above except the quoted areas is my opinion. I’d like to hear from others with CADRO experiences they’re willing to share. Rants excluded. I understand that some readers think I am a lying, antiunion demon. I got that a while back so you don’t need 1000 words to say it again.