Use of Grievance Mediation Spreading
reprinted from:
National Academy of Arbitrators
January 1994
The Chronicle
Grievance mediation has been defined by Stephen B. Goldberg, an NAA member, a professor of law at Northwestern University Law School, and the Director of its Mediation Research and Education Project (MREP), this way:
Working with a mediator, the parties attempt to settle the grievance using common mediation techniques . . . If a settlement is not reached, the mediator, who is typically
an experienced arbitrator as well, provides an immediate oral advisory opinion, predicting the likely outcome if the grievance goes to arbitration. The parties are then free to arbitrate, but the mediator cannot serve as arbitrator and no use can be made of the mediator's advisory opinion in arbitration. Nor may either party refer at arbitration to any admission or offers of settlement made by the other party at
mediation.
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Most arbitrators doing grievance mediation have been trained or selected for this practice by Professor Goldberg through MREP. The Project reports that members of its panel mediated 2,321 grievances from 1980 to 1992. From 1980 through 1989 the average was 148 cases per year, with a success rate of 80.2%; from 1990 through 1992 the average was 280 cases per year, with a success rate of 85.5%.
Professor Goldberg reports grievance mediation has spread from the bituminous coal fields, where he and Jeanne Brett originally experiment with it in 1980 under a Department of Labor grant, to hundreds of companies. MREP's clients, as of December 1992, include ALPA (United Airlines), CWA (AT&T, BellSouth, Indiana Bell, Michigan Bell), IAM (Louisville Naval Ordinance Station), IBEW (Ameritech Publishing, Contel New England Telephone, Potomac Electric Power), NEA (Washington, Wisconsin), OCAW (Amoco, Ashland Oil, Conoco, Lever Brothers, Unoven), UFCW (Thrifty Corp.), USWA (Cleveland Cliffs, Kennecott Copper), and Utility Workers (Boston Edison, Consumers Power).
MREP's roster lists 73 arbitrators throughout the country who handle grievance mediation under is auspices. Many others do this work too. One of the business arbitrators not associated with MREP is NAA member Mollie H. Bowers, who advocated the resurrection of the grievance mediation concept in an article several years before the coalfields experiment began. Mollie devotes about 10% of her time to grievance mediation, reports a 100% success rate, and speaks and writes about it with some frequency. Another successful practitioner, with a 90% success rate, is NAA member Frances Bairstow, a member of the MREP panel. Frances is currently very active with Southern Bell Telephone Co./Communications Workers of America. The experience of these two arbitrators seems to reflect the experience of all those involved in grievance mediation. The original coal industry experiment, for example, resolved 89% of the 153 grievances mediated.
Besides its success in resolving grievances, the grievance mediation process is favored for its lower costs than arbitration. In late 1992, mediators' fees and expenses for an MREP-conducted case averaged less than $450, in contrast to average arbitration costs of approximately $2,000. Costs are less because two or three grievances can be disposed of in one day with no study and decision writing time involved.
Arbitrators involved also emphasize the benefits to the parties of cooperative grievance solving over the adversarial arbitration process. Their joint problem solving skills are improved. Professor Goldberg cites as an example that at Boston Edison fewer than 5% of the grievances had been resolved before arbitration, whereas in 1991, after two years of grievance mediation, 75% of them were resolved without arbitration. In a speech at the IRRA Spring, 1992, meeting, Nancy C. House described the strengths and weaknesses of the process from her perspective. Strengths include faster resolution of cases; lower costs, a focus on resolving rather than winning, and constructive results. Weaknesses include the Union's pushing weak cases to mediation instead of dropping them earlier, pressure on the Company to "always give and the Union to always get in order to reach a settlement," regardless of merit, and the added costs of an additional step in the grievance process when the case goes to arbitration anyway. She reported 84 grievances mediation during a six-month period; 49 were settled, 17 were settled after the mediation conference, seven were withdrawn and 11 went on to arbitration.
