GRIEVANCE MEDIATION

FREQUENTLY ASKED QUESTIONS

SERVICES 

As a service to labor organizations and employers, I mediate grievances in an effort to settle them before parties must resort to the more costly alternative of arbitration. Several grievances can be mediated on the same day; affording all concerned a substantial time and cost savings.

PHILOSOPHY

As a Grievance Mediator, my goal is to help management and labor reach a mutual satisfactory resolution that is also acceptable to the individual grievant especially in discipline/discharge cases.
Mediation and arbitration are quite distinct ADR processes. The competencies required of neutrals in these professions overlap, but are far from identical. While labor arbitrators and grievance mediators must understand the facts and issues, there are important differences between them. Rather than act as decision-makers, skilled mediators motivate and assist disputants to abandon polar positions in a mutual quest to find solutions that meet their actual needs.

RELEVENT CAREER EXPERIENCE

1967–1978 Held increasing responsible administrative positions with American Arbitration in New York City, Chicago, and New Brunswick (NJ) Regional Offices

1978-1983 Arbitrator/Mediator of labor, employment and civil disputes; 1983-1988 Associate Attorney with Epstein Becker and Green in firm’s New Jersey and New York City Offices

1988--1994 Adjunct Professor Seton Hall School of Law

1988 – 2005 Associate Labor/Employment Attorney with PSE&G

2005 – present full time arbitrator/mediator of workplace disputes.
 

ORGANIZATIONS SUPPLYING GRIEVANCE MEDIATORS

American Arbitration Association—Labor Panel (NY, NJ, & Philadelphia)

Federal Mediation and Conciliation Service

New Jersey Association of Professional Mediators

New Jersey State Board of Mediation

Pennsylvania Bureau of Mediation 

FEES

$125 Per Hour for Session Time

Cancellation charge: $125 if less than 2 calendar days' advance notice

Expense reimbursement for mileage, tolls, parking

ARTICLES

“Dilemmas Facing Advocates and Arbitrators Who Mediate Grievances,” Rutgers Conflict Resolution Law Journal, Vol. 9 - Issue 1 (Fall 2011)

USEFUL LINKS

www.acrnet.org : Association for Conflict Resolution. Dedicated to advancing the practice and understanding of conflict prevention and resolution.

www.adr.org/ : American Arbitration Association. The association manages ADR cases thru mediation and/or arbitration. The site has rules for many different ADR rules.

www.fmcs.gov/internet/ : Federal Mediation and Conciliation Service. Agency of United States Government that handles mediation and arbitration of labor disputes and contract negotiations.

http://law.pepperdine.edu/straus/ : Straus Institute for Dispute Resolution at Pepperdine University School of Law. Leading educational institution in the field of dispute resolution offering Certificate, Master's (M.D.R.) and LL.M. in Dispute Resolution.

www.nlrb.gov : National Labor Relations Board. Independent federal agency vested with the power to safeguard employees' rights to organize.

www.ilr.cornell.edu : The ILR School at Cornell University is advancing the world of work through teaching, research and outreach.

www.smlr.rutgers.edu  Rutgers' School of Management and Labor Relations (SMLR) is a “leading source of expertise on the world of work, building effective and sustainable organizations, and the changing employment relationship.”

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FREQUENTLY ASKED QUESTIONS

Q: What is a “grievance?”

A: A grievance is a dispute or difference about the interpretation of one or more provisions in a collective bargaining agreement (“CBA”). The two main sub-categories are “language” grievances, and “discharge/discipline” grievances. The latter involves whether an employee has been fired, or disciplined without “just cause” as labor arbitrators have interpreted the term. Language grievance involve whether a specific CBA clause has been violated, e.g., alleged denial of holiday pay, improper subcontracting.

Q: What is “Mediation?”

A: Mediation is “a consensual process in which disputing parties decide the resolution of the dispute themselves with the help of a mediator, rather than having a ruling imposed on them [say by a labor arbitrator.] Commentary to the Uniform Mediation Act.

Q: What skills/traits do competent mediators share?

A: Practiced mediators most frequently are: 
        Active listeners 
        Quick studies 
        Extremely focused, i.e., “in the moment” 
        Empathetic 
        Plain spoken 
        Courteous and respectful 
        Emotionally intelligent

Q: What are the primary characteristics of competent mediators?

A: Mediator characteristics include: 
        Impartiality 
        Subject Matter Expertise 
        Integrity 
        Process Skills 
        Ethical (follow applicable codes) 
        Truthful

Q: What is “grievance mediation?”

A: The use of a labor relations neutral to assist with the settlement of a grievance with an eye-toward avoiding the time and expense of arbitration.

Q: What are the benefits of grievance mediation?

A: In 2010, nationwide, the average per case arbitration fee was $4,045 as compared with $500 for grievance mediation. With settlement rates ranging from 75% (FMCS) to 86% (Mediation Research and Education Project) grievance mediation provides faster results, mutually satisfactory settlements, and reduced costs. 
Unlike arbitration where there is usually a winner and a loser, grievance mediation permits the parties to craft a mutually acceptable resolution that often includes creative options that are not available as remedies in arbitration. Additionally, by resolving grievances through mediation, the parties can be more selective about which cases to take to arbitration. Grievance mediation has been particularly successful in workplaces with grievance backlogs. It dissipates the frustration felt by employees, supervisors, and managers who are directly impacted by an unresolved conflict. Indeed, research in the field shows that grievance mediation has a positive impact on overall labor-management relations as it focuses on interest based problem solving.

Q: What risks are associated with grievance mediation?

A: Private mediators charge for their services. If mediation is totally unsuccessful, i.e., doesn’t even lead to a narrowing of the issue being grieved, the parties’ time and money have not been paid back. This risk is substantially lowered when 2, 3, or 4 grievances are submitted to mediation during the same day. Competent mediators have at least 70% a resolution rate. Accordingly retaining the same neutral to assist with multiple grievances should statistically result in several settlements.

Q: What is the Grievant’s role in this process?

A: When grievances are mediated, labor organizations have the final say in accepting or rejecting proposed settlements. However, mediators as guardians of the process are obligated to promote procedural fairness. They must be sensitive to the right of grievants to fair representation at the bargaining table. This may require addressing a grievant’s absence, or suggesting that his/her presence may expedite settlement.

Q: Is it a good idea for the appointed arbitrator to first attempt to achieve a mediated settlement?

A: No; here’s why. Today, many labor arbitrators feel comfortable merging both processes when hearing ad hoc grievances. The Code of Professional Responsibility for Arbitrators of Labor-Management Disputes, as amended and in effect June 2003, facilitates this dual role. Section 2F permits arbitrators on their appointment to accept joint requests to combine mediation with arbitration. The Code also anticipates (the more likely occurrence) that a single party may broach the possibility of mediation after the arbitrator’s appointment. If the other side consents, the arbitrator may accept the dual role. However, in the face of an objection “the arbitrator should decline.”37 Lastly, the Code no longer precludes arbitrators from suggesting mediation. They may do so if “it can be discerned that both parties are likely to be receptive.” This discernment requires arbitrators to draw heavily on their wisdom and experience to gauge each party’s probable willingness to mediate.