When to Use Mediation
I have spent a good portion of my after-government service life as a mediator. Most of my meditation has been federal sector collective bargaining. It’s consisted of both mediating traditional collective bargaining and facilitating interest-based bargaining.
I have given up counting how many agreements I have worked on and how many unions and agencies I’ve worked with. Some of my work has been working with the parties from ground rules through the completion of the agreement. Other times my mediation only begins when the parties have gone as far as they can and then need help.
I’ve mediated term collective bargaining agreements, mid-term reopeners, mid-term bargaining, and bargaining after agency head review. I even did one extensive mediation on helping the parties to agree to what an already agreed to contract meant so they could do joint training on the agreement.
Every negotiation is different. What one group can come to an agreement in an hour can take another group days. What’s important in one negotiation may be of little interest in another.
In some bargaining the parties get along well and genuinely seem to like each other, in others they spend time sneering at each other. In some bargaining, each side is fully lawyered up to the max in others a lawyer rarely appears although that is changing as more lawyers are part of bargaining teams across the board. In some meditations, I have the responsibility to do fact-finding if no agreement is reached. In others, I am simply there to help the parties reach an agreement. In some negotiations, meditation will go to the wee hours of the morning in others it is strictly done only during the time set in the ground rules.
Job of the Mediator
I look at my job as a mediator very simply. I’m there to help the parties get to an agreement.
My preference is that they get an agreement with as little intervention by me as possible. However, often the reason I’m there is because they are stuck and couldn’t do it on their own. Sometimes my very presence leads the parties to come to an agreement, especially if I’m to do fact-finding.
Mediators come from varied backgrounds. Some FMCS mediators I have met had a union background while others came from management. There are no canons of ethics for mediators as there are for attorneys. There are no required educational requirements or any required certificate to mediate federal sector collective bargaining. However, some states do require mediator registration and/or certification and adherence to a mediator code of ethics.
Mediation is Hard Work
There is no magic to mediation. It’s just hard work.
The biggest skill a mediator needs to have is active listening. Mediators must listen to everything said and must question when they don’t understand something.
I ask a lot of questions. The answers can help in the development of a possible solution. The answers help to tell what each side really wants and what is really important. They also tell where the fault lines exist and where a party can or cannot go.
Proposing Language and Negotiability Issues
I am very active in proposing language for the parties to think about. Some mediators never do that.
Often this is done not expecting the language will be agreed to as written but rather it gives the parties a chance to start thinking about possible solutions. I also give the parties my experience in what has been done before in other bargaining sessions.
Sometimes I will weigh in on the negotiability of a proposal if it looks clearly to have potentially serious legal problems. If the language has worked somewhere else, I will share it with them.
I give each side homework assignments to get information or prepare new proposed language before the next bargaining session begins. The object is to move negotiations along and not waste time.
I always consider that there are very expensive and busy people on both sides of the table. They often come from all over the country at great expense.
Moving the bargaining along as efficiently and speedily as possible is my goal. That goal can only be achieved if the parties are willing to work hard to come to an agreement. Rarely have I seen the parties not dig in and do the work necessary to reach an agreement.
Sometimes, to the parties, there are seemingly insurmountable obstacles to reaching an agreement. I always tell them that they can come to a mutual agreement and get much of what they want but probably not all or they can have someone else tell them what their agreement is and potentially get very little of what they want.
When necessary, I will call a caucus with just the chief negotiators to see if, at their level, a meeting of the minds can be had. They will then take this back to their caucus and see if they can get an agreement.
An agreement for the sake of an agreement that makes no sense does a disservice to both sides. Agreeing just to get it over with usually comes back to haunt the parties. Agreeing and realizing you will be in endless litigation is not the best end result to a negotiation. If there is a section or sentence or word that is not clearly understood each side should fight it out at the table to clean up the meaning and not leave it to the litigators.
Federal Collective Bargaining is Expensive and Exhausting
Collective bargaining in the federal sector can be a time-consuming, expensive and exhausting process. It is not unusual for a term collective bargaining agreement to take years to be completed, especially if there is considerable litigation over everything from the ground rules to negotiability, to agency head review and ratification.
Different Presidential Administrations can have vastly differing approaches to federal sector collective bargaining. This can lead to endless litigation and bad feelings by the parties. It also can lead to repeating the bargaining process which adds additional time to reach a new collective bargaining agreement.
Being at the table month after month can be exhausting. Hopefully, after all of that, the agreement is durable and makes for a more efficient government.
