This is the third of four parts looking at what’s involved in finishing a negotiation. In this part, we’ll discuss reaching an agreement between the parties with the assistance of the Federal Mediation and Conciliation Service (FMCS).
Federal Sector Mediation is Unique
It’s important to start with a basic understanding that the mediation process in the Federal sector is way different from the way mediation operates under the National Labor Relations Act and Taft Hartley amendments in the Private sector.
In the private sector, both union and management facing the often disastrous prospect of a strike, see the mediator as a welcome participant in a process that can head off a very bad outcome. All of the human and political issues that can complicate bargaining are present in the private sector and the mediator offers an array of tools that create opportunities for face saving, blame passing and “see what they made me do” posturing for the players after the deal is made. Since similar immediate consequences don’t exist in Federal sector bargaining, mediation lacks the same punch and the mediator’s usual bag of tricks, so effective in private sector mediation, is not only ineffective but can appear ludicrous when used in the Federal sector (at least to Agency participants).
It is common to hear private sector mediators, labor lawyers, college professors and the like ridicule bargaining in the Federal sector. I’ve always thought this odd since money is the simplest of concepts in that we all know we want more of it. However, complexity perfectly describes the convoluted schemes to pay inspectors overtime that the former Customs Service and NTEU wrestled with in their negotiations. And, by the way, mediators in those bargaining impasses involving Customs and NTEU were likely not even to “get” the issues and so passed the matter on to the Federal Service Impasses Panel (Panel) or an interest arbitrator like a super-hot spud.
We have to deal with FMCS in the Federal sector. The Panel will not take jurisdiction of an impasse unless the mediator involved tells them that the parties are truly at impasse. If we must do so, let’s at least see if there’s some advantage to be had from the process.
Making Federal Mediation Useful
Early on, as a Fed, I had the opportunity to spend an evening (neither of us could get a plane out of town) with a mediator from FMCS (politely referred to as “Commissioner”). We had spent the last few days together in a mediation that failed to result in an agreement. He was very well thought of and has a reputation as a fair person. At some point in the evening, I mentioned that and he laughed.
I asked what was funny and he said that he earned his pay for not caring, so if people thought he cared, he was failing. He went on to say something that stayed with me ever since. He said that the only thing he really cared about was 72, which was par for his favorite golf course. He said he spent the time at bargaining planning to beat par. I asked if he was serious and he said, “it’s my job to get a deal, I don’t care if it’s a good deal for one or a bad deal for the other. They are adults and if they make a bad deal shame on ’em..” He then said, “ I’m there to be used. If someone is smart enough to use me and a deal results, I get to go back to the course, if not, I might actually have to work.” I assumed he was calling me dumb because no deal resulted from the mediation, despite his best efforts.
The lesson wasn’t lost on me and from then on, I considered mediation in two ways. First, if we were not going to get the union to agree voluntarily, I used mediation to try out my impasse arguments in a dress rehearsal seeing whether they passed the laugh test and what objections surfaced. Second, if I thought we might get a voluntary agreement, I spent a lot of time trying to figure out how could I use the mediator to help sell the deal I had in mind.
At this point, some (perhaps most) of you are saying that the dinosaur is revealing himself. That Gilson, never having read Fisher or Urey, is captured in the amber of confrontational, positional bargaining and not the enlightened way of sharing concerns and brainstorming solutions together. Yep, you’re right. Or perhaps what I’ve learned is that “nice” can work but that when you’re at impasse, baser instincts emerge and you better have more than one tool in the box.
No matter, the truth is that neutrals don’t care, institutionally, so you better. When whoever pays you asks about results or what you did, contractually, to make a supervisor’s job easier, they probably don’t want to hear that while you may have gotten unfavorable language, your relationship with the union is now wonderful.
Planning for Mediation
Don’t expect the mediator to pay much attention to detail. They generally believe that deals are made at a “macro level”. If details are important, and they usually are in the federal sector, keep your “micro” detail in play and encourage the mediator to go forth and sell the macro. Help them by beating to death how big a concession the “macro” deal represents.
Don’t try to convince the mediator. Who cares what a mediator thinks? Give the mediator information and tools they can use to sell the deal you want them to sell. Cooperate extensively as long as things are flowing the way you want. If not, be smart enough to caucus and come up with new ideas.
If you draw the “condescending, I’ve seen it all and this is small potatoes” mediator and you want to get a deal, do everything to feed their need to show how smart they are while letting them draw you into the deal you want. If you draw the person who is willing to be used (within limits) to sell the deal, as they say, use ‘em till you use ‘em up. If the mediator is savvy and smart, don’t insult their intelligence, they’ll catch your plan and will likely help you move to a deal particularly if the union is all about the justice of their cause rather than moving forward.
If you’re crazy enough to think that a “just between us” will be honored, send me your wallet today.
Mediators have a very short attention span. Either start with small bites one-at-a-time and build to bigger things or drop an early comprehensive package and help the mediator float it. In this regard, always bring some things the union wants but you don’t care much about to give the mediator some successes and therefore momentum.
There are no free deals. If you are seeking to engineer a contract at mediation, come to mediation with something that will close the deal. If you’re just selling the same old stuff you were before mediation, don’t expect either the union or the mediator to get very excited. Make sure when you surface the “closer” that the mediator knows it’s a closer and not just more incremental movement.
Mediators are predictable so come ready for and anticipate their use of trial balloons, separating the parties, shuttle diplomacy, packages, time pressure. By the way, mediators may try the old tactic of extended sessions to “wear down” the parties. I’ve enjoyed greatly watching the union’s absolute apoplexy at the prospect of having to stay at the table while off the clock. In every negotiation in which I saw a mediator try this, instant excuses related to child care, car pools, and the like surfaced even if the mediator gave notice in advance.
Please don’t whine about how much you have given up until now to reach an agreement. Have you no shame! If you do this the mediator will figure you for a fool and maybe decide to help the union by pressuring you to make the deal. Everyone with any sense assumes that you are smart enough to cover your Agency and wouldn’t have agreed to anything it wasn’t in your interest to buy.
A simple “no”, in essence, fires the mediator. If you want to be more subtle, float a lot of deals and increase what you’re offering but make it well short of what the union expects. You’ll end up at the Panel and the mediator will go out reporting how cooperative you were. You might even end up an officer in the Society of Federal Labor Relations Professionals (SFLRP)
Food for Thought
A friend of mine, a highly experienced Agency bargainer believes that the Romans defined FMCS Mediators best. “They tell people what to do it; they tell people how to do it; they claim they know the best way to do it; they even watch people do it; but, they can’t do it themselves.” Of course, the Romans were describing the eunuchs who hung around the power players of that time.
Part 4 will address the Panel and interest arbitrators. So please stay tuned.
I appreciate the comments and emails. Keep them coming.
Remember, the opinions expressed in these articles are mine and mine alone.
