Avoiding a Stalemate

Mediators might have one of the toughest jobs of them all — getting two entrenched sides of a dispute to come to the table and hash out the issue. The processes in labor and employment law have unique dynamics and present different hurdles to be navigated, but sometimes techniques to reach a compromise can work in both contexts.

There are several noteworthy distinctions between labor and employment disputes. When a union needs to mediate with an employer — usually to negotiate the terms of a collective bargaining agreement — a mediator is typically appointed by the Federal Mediation and Conciliation Service to facilitate those discussions. L2S Legal founder Bill Berger said, in the employment world, the mediator’s job is to bring opposing sides together, whereas the union representative and employer in a labor context are usually experienced negotiators.

“In my experience, mediators through FMCS who do collective bargaining mediation aren’t really there to bring the parties together,” Berger said. “They’re there more to articulate what each party is saying to the other party. Both sides in labor negotiations typically want to make a deal, they want to listen better.”

Mediation is used between individuals and employers to settle a case or avoid litigation in instances of alleged discrimination concerning protected classes — gender, race, age, disability, pregnancy, national origin, sexual orientation and religion. The nature of the relationship between employee and employer usually comes into play as well. Interpersonal factors and emotions play a different role between an individual and a long-term employer when there’s a claim of discrimination.

To read this story and other complete articles featured in the April 9, 2017 print edition of Law Week Colorado, copies are available for purchase online.