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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.
Top
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
https://www.alberta.ca/labour-relations-mediation-services
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.
Top
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.
Top
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 athttps://www.alberta.ca/labour-relations-mediation-services. 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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