MEDIATION

What is mediation?

In mediation, an impartial mediator helps those in conflict define issues, explore solutions and reach mutual agreement. Mediation is voluntary and the parties are in control of any agreements that result. Mediation seeks to prevent conflicts from escalating and the goal is mutual acceptability. The Public Employment Relations Commission conducts three types of mediation: contract mediation, grievance mediation and unfair labor practice settlement mediation.

Collective Bargaining Agreements:

Collective bargaining agreement mediation is an extension of the parties’ duty to negotiate a collective bargaining agreement concerning a bargaining unit’s wages, hours and working conditions. When public employers and unions don’t agree on the terms of a collective bargaining agreement, PERC provides mediation to help the parties reach an agreement. Contract Mediation Request

Grievances:

When public employers and unions have a dispute over the interpretation or application of a contract, PERC offers mediation to help the parties reach an agreement. Grievance mediation may be required in the parties’ grievance procedure, or may be jointly requested by the parties. Grievance Mediation Request

Unfair Labor Practice Complaints:

PERC offers parties to Unfair Labor Practice complaints the opportunity to participate in mediation.  When parties agree, a PERC mediator is assigned to assist them in reaching a mutually acceptable resolution of all or part of their dispute prior to a hearing.

The mediator will not be the hearing examiner if no agreement is reached, and will not discuss the case with the assigned examiner. During mediation, the parties will be encouraged, on factual and legal grounds including precedence on the particular issue, to resolve the unfair labor practice. Participation in unfair labor practice mediation is voluntary and a refusal to participate will not prejudice a party in any manner.

After a mediation request is received, a staff mediator is assigned and will contact the parties to set a date for an initial meeting.

Parties may request a particular staff mediator. However, the request must be jointly made and the requested mediator may not be available at the time of the request.
Each PERC mediator has his or her own “style” of mediation. However, many aspects of a mediation will be similar. The parties to a mediation can generally expect the following:

The Process

The mediation usually opens in a joint session (with both parties) to discuss the process, roles of the parties, clarify the issues, and answer any questions. On occasion, the mediator will determine it is best to do this separately.

During the course of the mediation, the mediator will determine whether to meet with the parties in joint sessions, caucuses, or a combination of joint sessions and caucuses.  If parties are in a joint session, they may request to caucus (without the other party present) with their individual team at any time. Other possibilities during the mediation include:

  • Meeting separately with one of the representatives
  • Having a side conversation with both representatives
  • Meeting with a smaller group or subcommittee
  • Telephone and e-mail conversations between sessions

 

Expectations of the parties

  • To reach resolution, it is important for parties to keep an open mind and focus on looking forward, not back.
  • It is helpful for parties to be open and honest with themselves and the mediator about what they need and their interests behind their needs. This helps the mediator assess mutual interests and work with the parties to resolve the issues.
  • Mediation is a process of compromise. Parties should not expect to get all of what they want, but hopefully something they can accept and live with.

What you can expect from the mediator

  • The mediator’s focus is on helping you find a solution to your conflict.
  • Mediators do not advocate for the union or the employer. The mediator’s job is to facilitate the process, serve as a sounding board, and help the parties find a resolution that will address their needs.
  • Mediators ask a lot of questions, some will be challenging and are designed to test the parties’ assumptions. These questions are intended to deepen the mediator’s understanding of the issues. Expect both sides to be challenged equally.

Contract and Grievance Mediation
Confidentiality is not complete:
  • Verbal or written communications made to the mediator in a caucus (i.e., without the other party present) are confidential and cannot be used in any legal proceeding arising from conduct at a mediation.
  • Verbal or written communications made directly to another party, or written communications delivered by the mediator with a party’s consent, may be used in a legal proceeding arising from conduct at a mediation.

Unfair Labor Practice Settlement Mediation

Confidentiality is complete:

  • Discussions at a settlement mediation may not be disclosed to the Examiner designated to preside at the hearing if settlement efforts are unsuccessful.
  • Evidence of statements made and conduct occurring in a settlement conference are not subject to discovery and are inadmissible in any proceeding in the action or other actions on the same claim. However, no evidence otherwise discoverable shall be inadmissible merely because it is presented or discussed in a mediation.

Notes in Mediation
Parties are responsible for taking their own notes of a mediation session. PERC mediators will take notes for their personal use and their notes are not available to the parties for any purpose. PERC mediators and/or their meeting notes may not be subpoenaed in any legal proceeding for any purpose.

 

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