FAQ - Mediation and Arbitration

 


 
 
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Frequently Asked Questions

Mediation and Arbitration

Unions and employers negotiate collective agreements which set out the terms and conditions of employment. Sometimes, the parties cannot reach an agreement. When this happens, unions may go on strike and employers may choose to lockout their employees.

Before a strike or lockout can proceed, the parties need to go through a mediation process. Mediation entails a neutral third party assisting the union and the employer to reach an agreement. The mediator does not decide an issue. Rather the mediator assists the parties to clarify their positions and reach a compromise. Mediators sometimes write recommendations. These recommendations are not binding and either party is free to accept or reject them.

Mediation is often confused with arbitration. Arbitration is a method of dispute resolution where a neutral third party hears from both sides and then decides an issue. An arbitrator’s decision is binding on the parties. There are two main types of arbitration. Interest arbitration is used to settle a collective agreement (instead of resorting to a strike and lockout). Rights arbitration is normally the last step in a resolving a grievance.


Questions:


Q: What is the purpose of mediation?

A:  An agreement reached by and acceptable to both parties is better than an agreement imposed by one side on the other or an agreement imposed by an arbitrator. A mutually acceptable agreement is better because it is something both parties can live with. Mediation provides parties to a dispute with an opportunity to discuss their differences with the assistance of a neutral third party. The presence of a third party facilitates communication and increases the likelihood that an agreement can be reached.

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Q: Is mediation required before a strike or lockout can commence?

A:  There are several requirements that must be met before unions can go on strike or employers can lockout their employees. One of those requirements is that the parties have taken a strike vote or lockout poll. Before a vote or poll can take place, the parties must have worked with a government-appointed mediator and have had 14 days to consider any recommendations made by the mediator.

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Q: Where do we locate a mediator?

A:  Under the Labour Relations Code, mediators are appointed by the Director of Mediation Services. Either side can request a mediator. You can contact Mediation Services at (780) 427-8301 or visit their website at http://employment.alberta.ca/SFW/172.html

Occasionally, parties to a dispute will seek the services of a mediator but will not be considering a strike or a lockout. In these cases, the parties’ collective agreement may spell out the process of selecting a mediator. The ADR Institute of Alberta keeps a list of mediators. You can contact them at 1-800-232-7214 or visit their website at www.adralberta.com.

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Q: How is a mediator selected?

A:   When one or both parties to a disputes asks the Director of Mediation Services to appoint a mediator, the request is reviewed to ensure the criteria are met for the appointment of a mediator. A mediator is then appointed from the Designated Mediator Roster, usually within three business days.

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Q: What happens during mediation?

A:  Once an appointment is made, the mediator arranges meetings with the parties to deal with the issues in dispute. The mediator works with the parties to find resolution in order to reach a collective agreement. The presence of the mediator facilitates communication. Mediators sometimes have the parties meet face to face. Other times, a mediator may shuttle back and forth between parties in separate locations. When the mediation is over, the parties may have reached an agreement. If not, the mediator may choose to write some non-binding recommendations.

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Q: What does mediation cost?

A:   When a mediator is appointed by the Director of Mediation Services. the first two days of the mediator's services and expenses are provided at no cost to the parties. For the third and subsequent days, fees and expenses of the mediator are shared equally by the parties.

When the parties seek mediation on their own, they normally arrange to share the fee charged by the mediator.

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Q: Is mediation a component of other labour board applications?

A: The Labour Relations Board prefers parties resolve their differences between them. Depending on the type of application filed with the Board, a Board officer may meet with the parties to discuss settling the issue. The Board may also appoint one of its members to mediate between the parties. Finally, the Board’s Chair or one of its Vice-Chairs may hold a resolution conference. If these dispute resolution efforts are unsuccessful, the matter may then proceed to hearing. Urgent matters are normally sent to an immediate hearing.

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Q: When can we use arbitration?

A:  Interest arbitration is used to resolve a bargaining impasse. Some collective agreements require the parties to submit their differences to interest arbitration rather than hold a strike or lockout. The parties to a collective agreement may also choose to go to interest arbitration even if their collective agreement does not require it. In this case, both parties would have to agree to take their dispute to interest arbitration.

Rights arbitration is normally the last step in a grievance process. Rights arbitration decides a dispute over the interpretation of a provision in a collective agreement, or if there is an allegation by one party that the other has violated the terms of the agreement.

The arbitrator’s decision in both interest and rights arbitration is binding on both parties.

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Q: Where do we locate an arbitrator?

A: The process of selecting an arbitrator for an interest or rights arbitration is normally set out in the parties’ collective agreement. Most collective agreements stipulate the use of either a single arbitrator or a three-person arbitration panel. A single arbitrator is normally appointed by agreement between the parties. When a three-person arbitration panel is to be used, normally each side appoints one member to the panel and the panel members choose a third person to chair the panel.

The ADR Institute of Alberta keeps a list of arbitrators who can serve as either single arbitrators or the chairperson of an arbitration panel. You can contact the ADR Institute of Alberta 1-800-232-7214 or visit their website at www.adralberta.com.

When parties cannot agree on a chairperson or a single arbitrator (or when one side fails to appoint its nominee to a three-person panel), Mediation Services makes the appointment from a selected Arbitration Roster. You can contact Mediation Services at (780) 427-8301 or visit their website at http://employment.alberta.ca/SFW/172.html The costs associated with the arbitration process are shared equally by the parties.

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Q: What happens during an arbitration?

A:   The arbitrator arranges a meeting between the parties to determine what issues need to be resolved. The arbitrator then holds a hearing into the matter where both sides present information and evidence they believe supports their case. The arbitrator may also request written submissions before and/or after the hearing. Once the arbitrator has all of the evidence, the arbitrator considers the matter and issues a decision that is binding upon the parties. It can often take a significant amount of time to receive an arbitration decision.

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