with a variety of lenses and with different objectives.
As in the mediations previously described, the parties
may view the mediation process as both an opportunity to settle the dispute as well as an opportunity to
gain insight into the other party’s perspective, to try
and predict the LBO that party may make if interest
arbitration is employed, and to assess its own position and potential exposure as a result. In a med/arb
setting, the parties will also be attempting to discern
the perspective of the mediator/arbitrator, listening for statements or cues which may provide insight
into how that neutral will view a particular LBO. Parties may also view the mediation as an opportunity to
educate and sensitize the neutral to its particular position on each disputed issue.
The Code of Professional Responsibility for Arbitrators of Labor-Management Disputes of the National
Academy of Arbitrators, American Arbitration Association, and Federal Mediation and Conciliation Service
specifically recognizes that arbitrators may be asked
to serve in this dual role. Section F, 1, a states: “Direct
appointments, also, may require a dual role as mediator and arbitrator of residual issues. This is most
likely to occur in some public sector cases.” Neutrals
serving as both the mediator and arbitrator in collective bargaining disputes that may lead to interest
arbitration will often begin the mediation session by
reminding the parties of the purpose of the mediation
and the benefits of maintaining self-determination
by voluntarily settling the dispute prior to arbitration. The neutral may also remind the parties of the
process that will be employed in the event mediation
is not successful, outlining a schedule and establishing expectations for the exchange of LBOs and the
course of the subsequent arbitration hearings. While
mediating, the neutral may make evaluative statements, often reminding the parties that his or her
perspective may change, subject to the evidence presented at hearing. Here, the neutral must be aware
of the unique role he or she will play in the resolution
of the dispute, and deliberate in regard to the efforts
made to bring the parties to resolution, given the outsized influence the neutral have in mediation given his
or her subsequent decision-making role.
The intricacies involved in mediating public sector
collective bargaining disputes vary based on the statutory framework under which the neutral is operating.
Where interest arbitration is authorized, the mediator is able to remind the parties of the benefits, to
outcome and relationship, in voluntarily resolving the
dispute. Where the neutral serves as both mediator
and arbitrator, the parties may be even more sensitive
to resolution efforts. n
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