Transcript - Best Interests - An Introduction to Grievance Mediation

YVON TARTE:

Hello! My name is Yvon Tarte. I am the chairperson of the Public Service Staff Relations Board. Mediation is more than just a process. It is the backdrop to a healthy workplace. It provides a framework for doing business, it saves time, money and relationships. This video is in keeping with the training and help which the Board provides to its clients.

Labour relations traditionally had been adversarial. Too often we believed that labour relations must be litigious and that procedures and system which are in place must produce a winner and a loser. Success in labour relations, or in any relationship for that matter, should not, cannot depend on the victory of one party over the other. In any workplace, the interests of management, labour and employees overlap.

One of the goals of mediation is to identify those common interests and bring the parties together. Mediation allows the parties to a workplace dispute to fashion a remedy or a solution to their problems which will inevitably be more useful than any decision imposed by an arbitrator based on the evidence presented during an adjudication hearing. Mediation has the potential of enhancing workplace relationships. The best possible agreement in any dispute is always a solution devised by the parties. I hope and trust that this work tool will prove to be useful.

MUSIC

HOST:

It's not easy keeping things running smoothly in the workplace.  After all we're human, and humans occasionally disagree. Most disagreements are minor and easily resolved or worked around. But sometimes conflict can cause a serious rift between an employee and supervisor. This may result in the filing of a grievance by one or both of the people involved. Today, a growing number of disputes are being resolved using methods of “alternative dispute resolution”, specifically “grievance mediation”. In grievance mediation, the two parties voluntarily come together to solve the problem themselves. The meeting is facilitated by a trained mediator.

HELEN ZWIEBEL:

Mediation is being used more and more to resolve disputes in the Public Service, in business and in industry. The reason it's being used is because it has a very, very proven track record. It's very, very effective and efficient in resolving in resolving workplace disputes in particular. What we find is that the problem is usually solved, which is the first thing that people are looking for; and also because the problems are worked on by the parties together, each side gets something, each party gets something from the process, the actual solution is highly durable. The parties feel like they each got something out of it, and so it tends to be an agreement that will stick.

Also, mediation gives the people a sense of closure. You can schedule a mediation fairly quickly. Also, the process itself doesn't take a long time. And because the parties are grappling with, and focusing on a problem together, they have a clear sense of accomplishment with what they have achieved at the end of the day.

HOST:
Over the next few minutes, we're going to take an inside look at the mediation process: who's involved, how it works, and what can be accomplished. We're going to follow the story of David and his supervisor Michelle. These are fictitious characters; but their story is typical, and it illustrates how mediation is used to find solutions that satisfy both parties.
HOST:
David has worked in Michelle's section for the past eighteen months. He's worked hard, putting in a lot of extra hours. The section is under a lot of pressure to deliver critical services to its client departments. Michelle feels David isn't doing his share to meet these demands. David thinks he's being worked too hard. A few weeks ago, their disagreement came to a head…
DAVID:
…Michelle, I was here ‘til seven o-clock last night working on this report…
MICHELLE:
But it's still not done, and we have a deadline! You know, can you tell me  when you will have it finished?
DAVID:
I'm aware of the deadline, but there's a lot of work here and not enough people to do it!
MICHELLE:
You know, David, if you don't think you can get your work done on time, maybe you should think about moving to another department where there's less pressure…
DAVID:
…I work hard at that job. She should appreciate that. But instead she wants to get rid of me. I can't believe it…
HOST :
David was upset and insulted by Michelle's demands and annoyed that his hard work wasn't being appreciated. He was even thinking about moving to another section. He discussed the problem with his union representative, Sylvia. They decided not to lodge a harassment complaint – for the time being; but they felt strongly that David should be compensated for his overtime hours. So, a grievance was filed for retroactive overtime pay.
KARL (ON PHONE, TO MICHELLE):
Well, yeah, I agree, Michelle… You've have real concerns, and clearly David does too. I think it's in everyone's best interest that we clear this up as soon as possible. And you know, I think we might be able to do it without going to adjudication…
HOST
When she received the grievance, Michelle contacted her labour relations advisor. Karl has had a lot of experience with grievance mediation. Rather than see David's grievance go to adjudication, he felt the issue could be settled quicker, and with better results, by mediation. This was new to Michelle, but she agreed.
MICHELLE (ON PHONE):
…Okay Karl. You know, I'm really not as optimistic as you are, but if you think we can get this solved through mediation, then, I'm willing to go along with it…
HOST
Sylvia knew that overtime pay wasn't the only issue, and she hoped that mediation might address some of the deeper issues, like workload and communications. She too agreed to try a mediated settlement, and recommended this to David.
SYLVIA (ON PHONE, TO KARL):
…Sure, I think David will go for mediation. I'll call him right now and get back to you.
MYKE TYNES:
Well, in adjudication… adjudication is really where the grievance, or whatever is referred to a third party, to an independent party to try to resolve… the adjudication process is a very confrontational process.
ADJUDICATOR:
Do you swear the evidence you will give this tribunal will be the truth, the whole truth and nothing but the truth, so help you God?
WITNESS:
Yes, I do.
ADJUDICATOR:
You may sit down.
MYKE TYNES:
It's a win or lose situation for the most part. When the adjudicator renders his or her decision, one party or the other will like it or not like it. And I find that mediation in many cases, and almost all cases, eliminates that.
HOST
Mediation is different. For one thing, it's less formal; but it's also a different approach to conflict resolution. Solutions are sought that benefit the interests of both parties. Instead of adversaries trying to get a bigger slice of the pie, mediation gets the parties working together to come up with imaginative ways to make the pie bigger!

PRE-MEDIATION

DAVID :
…Well, it's been building for some time and I think it's come to a head.
HOST
The first step in mediation is called Pre-mediation. This is when the Mediator, Carole, meets with the grievor and union representative, and separately with the supervisor and labour relations advisor. Carole introduces herself, and explains the process of mediation:  that the session itself will take about a day, and at the end David and Michelle should have arrived at a solution to which both will agree. She then listens to each party's account of the events.
CAROLE:
…David, what did you mean when you told me that you think Michelle does things on purpose to keep you late at work?
DAVID:
Well usually  I finish work at five o'clock, but then she'll call me into her office for a meeting at, say, ten to five. So that means I leave late, which means I'm late picking up my daughter…
HELEN ZWIEBEL:
Well it's useful to have a pre-mediation discussion. That's an opportunity for the parties to get to know the mediator, to develop a sense of confidence in the mediator's ability to work with them; to get a sense if the mediator is receptive, qualified, doesn't have any biases, and can be of impartial assistance to their issues. And also, I think it's important for the parties to have a  sense of what the process is going to look like. Nobody wants to walk into a room for the first time, not knowing what to expect. So it builds confidence in that process. You really want people to go into the mediation feeling comfortable, that they know the process is there for them, and that they're going to be listened to and attended to, and that this will be an opportunity to really get what they need out on the table. The other thing that a pre-mediation discussion does is that it gives the mediator an overview of the situation, and also an opportunity to hear what each party has on their mind, how they see the issues that are going to be presented. It can take place anytime. Usually a week before, sometimes the day before. It often is an actual face to face discussion, an actual meeting; but you can have an effective pre-mediation interview on the telephone, if the parties can't schedule it any other way.

THE MEDITATION

CAROLE:
Good morning, Karl. Thank you for coming. Do you know Sylvia?
KARL:
We've talked on the phone but we've never actually met. Hi Sylvia.
HOST
The mediation session begins with Opening Remarks.  Carole welcomes the participants and thanks them for coming. She reviews the mediation process, lays down the ground rules, and acknowledges she's pleased to be a part of this team that together will find a solution that works for everyone. She answers any questions the parties may have, then asks them to sign the “agreement to mediate”, which they've seen in pre-mediation.
CAROLE:
I have the agreements here that I will ask all of you to sign. It's basically what we discussed earlier. So if you'd like to take a look at that now, and sign them. It's a necessary part of the process that ensures that everybody's on the same page…
HELEN ZWIEBEL:
First of all, a mediation usually takes about a day. Sometimes they can be less… it could be a couple of hours… But you have to have enough time set aside to actually have an appropriate conversation. There's a few things, I think, that add considerably to the process itself. First of all, the mediator should spend a considerate amount of time building trust in the process itself. The parties need to feel that the mediator is impartial, that they haven't formed any particular bias, there not taking one side or the other. They have to feel confident that what they say to the mediator will be private and confidential. That's very, very important. And they also have to have a sense that the mediator thinks that this is something that can be resolved effectively, that there's a reason for focusing on this problem. The other thing is that the environment has to be conducive to a discussion. This is not a formal court hearing, and the room should feel like it's one that's designed for an informal discussion. And the parties should know that there are breakout rooms: a place that they can go to have a private conversation, either with someone that they brought, or with the mediator from time to time, if that is useful in keeping the discussion going. So it has to be something that is comfortable, and instills confidence in their ability to get on with things. The other thing that's really critical to a successful mediation is that the parties have to be given an opportunity to have as open of a discussion as they can. The more information they share, the more opportunities there are for making the problem workable.
HOST:
After her Opening Remarks, Carole asks the participants to each say a few words about why they're here and what they hope to accomplish.  The grievor usually goes first; so David begins, followed by Sylvia.
DAVID:
…Well, Michelle, I'm here to find a solution to this problem we have. I want you to understand what I have been going through and I'd like to see some changes. Things cannot stay the way they are – I think we can all agree to that, so I hope we can work something out here, today.
CAROLE:
Thank you David. Sylvia, would you like to add something?
SYLVIA:
Just one thing, thank you: I would like to emphasize what David has just said. Things have to change. Now, ideally we'll be able to work together today and find a solution; but if not, we're fully prepared to take all the necessary steps to get this issue resolved.
CAROLE:
Thank you Sylvia, Thank you David. Michelle?
MICHELLE:
Thank you … Well, it's critical that our section delivers a high-quality product to our clients; and judging by what they're telling me, that's not what we're doing right now. So that means that all of us in our section really need to work together as a team and we need to work harder. So, I'm hoping that today , we can come to an understanding that will allow us to get back to business as soon as possible.
CAROLE:
Thank you Michelle. Karl?
KARL:
Well I've been involved in Mediation before and I've seen how it can work. It lets people take responsibility for finding their own solutions, and I think that's good. I'd like us to reach an agreement today that's reasonable and fair for everybody here so that we can bring closure to this issue.
CAROLE:
Thank you Karl. Okay, well I think we're off to a good start. So David, why don't you tell us what's been going on in your section…
DAVID:
I just want to bring up a few points about how I feel…
HOST
After the opening remarks, Carole initiates a discussion on the issues surrounding David and Michelle's problem. Each person has the opportunity to tell their side of the story, comment on what others have said, and ask for clarification. Misconceptions and misunderstandings are at the heart of almost every dispute. This discussion of the issues helps each side get a better idea of the other's concerns.
DAVID:
That's what my arrangement with the daycare centre is … So when I'm called in to these meetings at the end of the day, it costs me twenty dollars because the daycare has to keep my daughter past five-thirty …
MICHELLE:
I didn't know you had to pick up your daughter…
GRAY GILLESPIE:
In most situations where mediation works, especially the PSSRB style mediation, it's where there's a dispute between an employee and a supervisor, a manager, whatever, over a whole bunch of … you know … It comes out as a grievance. That‘s basically the way things always seem to start off with: a grievance. And then, if you sit down and you listen to one another, it's amazing the number of different issues that really are behind whatever caused that grievance. And mediation gives everyone the opportunity to sit down and discuss frankly, and in a non-threatening environment, just exactly what the issues are that are bothering them. The behind the scenes stuff in those grievances is far more important than the up-front stuff, very often. And mediation gives everybody the opportunity to get those issues on the table and for one party to actually have to sit down and listen to what the other party has got to say. That's really important.
CAROLE:
Okay, we've gotten the issues out. Now let's see if I can remember what's important to you…
HOST:
This is the phase of the Mediation where Carole guides Michelle and David towards discovering their underlying “interests”. What are the needs, desires, concerns, even fears that they'd like to see resolved.
HELEN ZWIEBEL:
Just getting out the issues is not enough. That's almost like a first step: establishing the topics that need to be discussed. What's really important is that the parties each understand the issues or interests that the other party has brought with them to the discussion. What actually is underneath the problems that each party is having, that's the way you build the foundation for coming up with a solution: Understanding what each side really needs to discuss, not just listing the issues.
CAROLE:
So what do you think?…
HOST:
This is what's at the centre of “interest-based” mediation, where you look beyond what the different positions are of the parties and focus on what each of them really needs. Often, these interests can be common to both sides.
CAROLE:
Anything else?
MICHELLE:
…Well, our section has a reputation for quality and service.  We want to protect that, which means we have to provide a certain level of productivity.
CAROLE:
Sure, those are interests : Section reputation, productivity … Anything else? What about “Family”? I think both of you  mentioned that you want a balance between work and home commitments, right? Ok. Karl, would you mind? Thank you. Okay, keeping  these interests in mind, I'd like us to move to the next phase, which is: “Options”. What  I'd like us to do is brainstorm possible solutions. Anything goes! We're not committing to anything, so no one's criticizes. Okay? What we want to do is get as many options as possible. That'll make it easier for us to find a solution that suits both of you. Okay. Let's do it…
HOST:
During the “Options” phase, the parties are asked to put their heads together and come up with as many possible solutions as they can – solutions that address the interests of the parties. Every idea is written down. Later, those that aren't possible, or aren't desired, are crossed out. The ideas that remain will form the basis for a workable solution that both parties agree on.
MICHELLE:
…Well, as you pointed out, David, our afternoon meetings are a problem. So maybe we could schedule our meetings first thing in the morning.
CAROLE:
Good, “morning meetings”.
DAVID:
Well, I could move to another section.
MICHELLE:
Um, Carole? Could we pause for a minute? I'd like to caucus with you.
CAROLE:
Sure. David, Sylvia, if you wouldn't mind going to the break  room. I'll be with you in a minute.
PAUL MORSE:
The parties have to know that even though they are there collectively to try and resolve the problem for whatever reason, they should also know there's also an opportunity to take a time out, and have a little caucus between the parties … And that party or caucus can be the employer side and their representative, the union side and their representative and the employee or the member that they are there with … And it can include the mediator at times as well. So that's not unusual; certainly, I've seen this before, myself. And whether it's before a mediator that's been appointed by a labour board , or just a mediator that's been brought in to work an environment situation to resolve a problem, whether it be in a local or regional location, to try and say: Listen, we need a time out here, and we need to talk. I need to talk with the member … Or the employer may say : Time out, I need to have a talk with the departmental rep … And by the way, after about seven to ten minutes together, Mister or Mrs Mediator, can you join us …
CAROLE:
Before we begin , Michelle, I want to remind you that anything you tell me remains confidential.
MICHELLE:
Thank you. Carole, when I told David that I thought that he should think of transferring to another section, I didn't mean it. I was just angry at the time. You know, David is an asset to our section, and I don't really want to lose him. But I also do think that he needs to learn to manage his time a little better.
CAROLE:
Okay. And would you be willing to tell David that?
MICHELLE:
Yes. Yes I would.
CAROLE:
And in terms of better managing his time, what did you have in mind?
MICHELLE:
Well, I thought I could send him on a time management course.
CAROLE:
Could that be one of our options?
MICHELLE:
Yes!

MUSIC

CAROLE:
Okay, I think I have some good news…
HOST:
After the requested caucus with Michelle and Karl, Carole may, if necessary, meet with the other party to discuss any concerns they might have. Then, the mediation continues…
HOST:
Working with the parties, Carole has trimmed the options down to those that are possible, acceptable, and fair.  From these, Karl and Sylvia have written an agreement to be signed by the four of them. The Agreement is brief, specific, and clearly written.  In addition to the terms unique to their situation, Michelle and David also agree to keep the terms of settlement confidential, that this is a full and final settlement of all issues, and that the solution reached is not precedent setting.
MICHELLE:
I'm glad we were able to do this…
DAVID:
Yeah…
HELEN ZWIEBEL:
It's important to remember that the mediator is not the one who is solving the problem. The mediator helps the parties focus on the problem so that they can solve the problem. That's actually critical. The parties know exactly what their workplace is about, they know what's practical. They know what will work, and what wont work. The mediator can encourage the parties to be very creative, so that the solution can be very broadly based. But it's not the mediator who does the hard work. And in fact , that's what makes mediation so powerful and so different from an adjudication. In an adjudication, there is a winner, and a loser. In a mediation, both the parties should be able to come out with something that will work for both of them, so that it is a very durable and practical agreement, at the end of the day.
HOST:
>Everyday, Mediation proves its effectiveness in grievance resolution. The process is straight-forward and quick…

“PRE-MEDIATION”

HOST:
… it begins with pre-mediation, where the Mediator and parties get to know more about the mediation process, each other, and the circumstances of the grievance.

“INTRODUCTION”

At the Mediation session, the Mediator first ensures all the parties are introduced and thanks them for attending. The Mediator then reviews the process and the ground rules they'll follow.

“ISSUES”

Facilitated by the Mediator, the Parties discuss the specific issues behind the grievance.  Often, it's during this phase when key information comes to light for the first time.

“INTERESTS”

Rather than dwell on the opposing positions of the parties, the Mediator and parties distil the specific interests that are at stake.

“OPTIONS”

Together the participants brainstorm possible solutions to their dispute.  Once gathered, options that are practical and desired are retained.

“The Agreement”

The options that remain form the core of a solution, which is expressed in a specific and binding agreement signed by both parties.

HOST:
Being able to arrive at a workable agreement, and do so quickly and effectively, has made mediation a valuable option for resolving grievances. In avoiding the adversarial and emphasizing collaboration, this interest-based approach more often than not results in a win-win solution that's in everyone's best interest.