How existing procedures shape alternatives: The case of grievance mediation (original) (raw)
Related papers
Waiting in the wings: Mediation's role in grievance resolution
Negotiation Journal, 1994
Contrary to popular belief, mediation is not a new process to resolve formal grievances filed in the workplace. When arbitration emerged during the 1930s and 1940s as the dominant method of resolving grievances in unionized workplaces, one school of thought championed a version of arbitration that relied on the informal problem-solving techniques of mediation rather than the more formal contract interpretation methods of adjudication to decide the grievances that unions and employers could not settle by direct negotiations (Nolan and Abrams 1985). If this "arbitrator-as-mediator" effort did not resolve the grievance, the arbitrator then rendered a decision. This process is sometimes called "med-arb" in recognition of the fact that the same person wears both hats in the same dispute. However, during the 1940s and 1950s, this mediatory style of arbitration was roundly eclipsed by the adjudicatory style of arbitration, t These mediatory efforts by arbitrators did not disappear (Handsaker 1966; Simkin 1971), but they took a distant "back seat" to the more formal method of adjudicatory arbitration. During this same period, a few unions and employers experimented with mediation as a separate pre-arbitration step in the grievance procedure; these efforts were designed to resolve grievances in a faster, cheaper, and less adversarial manner than arbitration (McPherson 1956; Prasow 1950). Despite its occasional use and published reports about its successes, grievance mediation remained largely hidden from view. Instead, the adjudicatory form of grievance arbitration was adopted as the terminal grievance step in almost all unionized workplaces, and the procedural alternatives to this type of arbitration faded into the grievance resolution woodwork. 2 The current emergence and visibility of grievance mediation as a separate step in the grievance procedure can be traced to the early 198Os, when Profes
Mediation as an alternative means of resolving disputes
Review of International Geographical Education Online (RIGEO), 2021
The subject of the article research is the Mediation as an alternative means of resolving disputes, the methodological basis of the article research is the controversial Approach to the problem under consideration using general and private methods of scientific Knowledge, formal legal, and logical, socio-psychological, system analysis. In the process of research the achievements of the sciences of civil, private international, Iraqi law, and civil procedure. And labor law This Study is divided into two parts: the first part presents the concept and types of mediation, and the second part Presents Development of mediation and the sources of its regulation in the Iraqi law.
Institutionalization of Mediation
Family Court Review, 2005
Mediation has evolved, grown, and been accepted within our society from preschools to doctoral programs and in courts, legislatures, and private industry. The passage of the Uniform Mediation Act, the birth of the Association of Conflict of Resolution, and the involvement of government bodies in the regulation of mediators indicate the importance of the institutionalization of mediation within every aspect of our society. This article focuses on a few of the hot issues currently swirling in the field raising questions for practitioners, researchers, and others involved in shaping access to contlict resolution policy and the future of the mediation profession.
Mediation and the legal system : Extracting the legal principles of Civil and Commercial Mediation
2018
worked on several projects of the Conflict Management Institute (COMI) and the University of Helsinki which broadened my view on dispute resolution and civil justice systems. The research project on dispute resolution in social security matters financed by Kela required me to look at the basic structures and principles of judicial justice systems in general. The study on out-of-court settlement mechanisms in transnational labour disputes and discussions with Professor Niklas Bruun confronted me with the limitations of alternative dispute resolution. Besides these research projects, I had the opportunity to work on integrating mediation into a training program for legal psychology-thank you Docent Julia Korkman for your broadmindedness. I would like to thank the many friends who have supported me in this project, especially Ms Nina Arkilahti and Dr Kari-Pekka Syrjä who showed me the way into the dissertation and supported me when finalizing it. I have always used different ways to balance my professional life. For the utmost support in this respect, I thank Super Ted for letting me forget everything and for making me believe that I can fly. I count myself incredibly fortunate to have a wonderful family that keeps me busy and focused on what is truly important. They are the ones with whom I can retreat, gain energy and feel sincerely loved. I dedicate this book to you, Lauri, Santeri and Kari. Thank you for sharing this life with me.
Mediation - Alternative Dispute Resolution
Safety Engineering, 2019
The European Union actively promotes methods of alternative dispute resolution (“ADR”), such as mediation. The Mediation Directive is applied in all EU countries and it refers to mediation in civil and commercial matters. Encouraging the use of mediation facilitates the resolution of disputes, and it helps to avoid the worry, time and cost associated with court-based litigation. This way, it enables citizens to secure their legal rights in an efficient way. Keywords: alternative dispute resolution, the Mediation Directive, judicial and extra-judicial mediation
The Use and effectiveness of mediation as a conflict resolution tool
2010
Introduction Mediation has been acknowledged for many years within legal discourse as an effective means of alternative dispute resolution (ADR) in various areas, such as family law, medical law, commercial law (hereafter referred to as traditional mediation). However, recently - ...
1994
The Alternative Dispute Resolution Section of the Association of American Law Schools presented a program, at the 1994 AALS Conference, on the institutionalization of mediation-through court-connected programs and otherwise. The topic is an important one, because this phenomenon has become increasingly common. Moreover, the topic seemed especially appropriate for the 1994 program, since Florida-the host state for the conference-was one of the first states to adopt a comprehensive statute providing for court-ordered mediation (at the trial judge's option) in civil disputes of all kinds. The move toward institutionalizing mediation has raised many questions, and the program mentioned was designed to highlight those questions, and provoke discussion. This article includes an edited transcript of the panelists' comments.
Mediation in Employment and Creeping Legalism: Implications for Dispute Systems Design
Journal of Dispute Resolution, 2010
This symposium examines the relationship between collective bargaining, grievance arbitration, and individual employee rights in light of 14 Penn Plaza LLC v. Pyett.1 Pyett presents a substantial challenge to the partners in collective bargaining. Since Steele v. Louisville & Nashville Railway,2 the Supreme Court has recognized the potential conflict between majority will in workplace democracy and vindication of individual employee rights. For over three decades, labor and management have bargained on the understanding, espoused by the Court in Alexander v. Gardner-Denver Co.,3 that employees retain their power to pursue individual claims of discrimination (via Equal Employment Opportunity, or EEO, complaints). Pyett suggests that it may be possible for a union to waive individual employees’ rights to pursue claims of age discrimination in a judicial forum if the waiver is sufficiently clear and unmistakable. The continued growth of statutory claims in grievance arbitration raises the prospect of further formalism, a phenomenon some have termed “creeping legalism.”4 Labor and management have an opportunity to address this challenge in future collective bargaining as contracts expire. Some participants in the symposium have suggested one solution; simply carve these claims out of the contract entirely. There is another approach. While preserving an individual employee’s rights to pursue these claims in the Equal Employment Opportunity Commission (EEOC) and courts, labor and management can provide an alternative: voluntary mediation. However, mediation itself presents issues of creeping legalism. Some models of mediation require that neutrals and parties have substantive employment law expertise; others are much less legalistic. This article will explore the question of creeping legalism in mediation of statutory disputes arising out of employment. First, it will briefly review the issue of creeping legalism in arbitration. Second, it will introduce dispute systems design (DSD). Third, it will review the analogous debate on legalism in mediation in three design contexts: evaluative mediation of employment disputes in the court connected setting, grievance mediation embedded in the collective bargaining agreement, and transformative mediation of employment disputes in the United States Postal Service’s (USPS’s) REDRESS program. Most employees do not face a choice among mediation models; instead, they choose among adjudicative processes or mediation. Thus, the article will conclude by reporting the results of an interview study comparing USPS employees’ experiences in the EEO complaint process, grievance arbitration, and employment mediation. These results show that an individual employee complainant may benefit from a non-adversarial, non-legalistic, and voluntary mediation model that seeks to foster communication and mutual understanding.