| Arbitration is widely viewed as a cost-effective alternative to litigation. At the same time, however, the costs of arbitration (and its increasing similarities to a full blown trial) are rising. For this and many other reasons, both labor unions and companies are looking to ways of reducing the total number of grievances that end in arbitration. One such alternative is grievance mediation.
Differences from Arbitration
The primary way mediation differs from arbitration is evident in its name. Unlike arbitration, where there is a winner and a loser in every case, mediation seeks to establish a compromise that is acceptable to both parties. This is particularly beneficial when both parties may be willing to compromise, but external factors (politics, a history of bad negotiations) make direct negotiation implausible.
Another factor that separates mediation from arbitration is the cost. Because mediation is even less formal than arbitration, it can be significantly less expensive. (Specifically, mediations tend to require less time, fewer witnesses, and no written final decision or briefs.) The fees due a mediator vary and may range from free of charge to a rate one-and-a-half times that of an arbitrator. Either way, however, the reduction in time usually results in a lower total cost.
Cases Suitable for Mediation
Most cases that would be considered for arbitration are suitable for mediation. For contract disputes and negotiations, for example, mediation can provide a less adversarial forum for discussion and more freedom for compromise. Another common grievance, employee misconduct and disciplinary action,may also benefit from mediation. Because such cases are very specific, mediation offers an opportunity for action in line with the offense. Mediation may serve as the first step or it may come out of a recommendation by an arbitrator who believes a compromise is in the best interest of both parties.
Here, it is also helpful to keep in mind that grievance mediation is not necessarily the final resolution of a dispute. For one, the outcome of mediation is not binding the same way that an arbitration decision is binding. If the mediator feels that the proceedings are going nowhere or if one of the parties fails to uphold its portion of the compromise, formal arbitration remains an alternative.
Mediators
The individuals who serve as mediators can come from a variety of places. Occasionally, a collective bargaining agreement will provide for the hiring of an individual to handle all cases submitted for mediation. Arbitrators, either on staff or freelance, may also serve as mediators. Additionally, parties may seek the assistance of state and federal mediation services, whose mediators often serve at no cost to the company or union. (It should be noted that, in cases where a mediation proves unsuccessful and the case ends in arbitration, the individual who served as mediator should not also serve as arbitrator.) Copyright 2010 LexisNexis, a division of Reed Elsevier Inc. |