Mediation: A pillar of labour law for years.
By Najeeb Hassan
Much has been written about alternatives to litigation, which produces winners and losers (mostly losers given the cost, delay and inflexible outcomes). However, for decades, labour lawyers have engaged in mediation and arbitration. Indeed, the Labour Relations Code (the Code) both mandates and enables mediation.
Perhaps, mediation has been a cornerstone of labour law practices because clients generally have an on-going relationship. No matter how difficult or intractable the issues, relationships play an important role in crafting a solution.
The Code requires the government to appoint an Associate Chair of Mediation of the Labour Relations Board to ensure the Code values regarding mediation are implemented. The Mediation Services Division at the Board provides conflict resolution services relating to collective bargaining, essential services, grievances, joint consultation and relationship enhancement. The Associate Chair of the Mediation Division has authority to appoint mediation officers to help resolve disputes. Section 2 of the Code imposes a duty on those acting under the Code to promote “conditions favourable to the orderly, constructive and expeditious settlement of disputes” and encourage “the use of mediation as a dispute resolution mechanism.”
COLLECTIVE BARGAINING, ESSENTIAL SERVICES AND GRIEVANCE MEDIATION
When parties are unable to reach a collective agreement themselves, they may apply for a Board appointed mediator. The well-respected mediators at the Board have years of experience. In addition, trade unions and employers often agree to one of several private mediators with a well-earned, trusted relationship.
Unlike other areas of law, labour mediators, after identifying common ground between parties, frequently suggest specific solutions to bridge differences. It is common for them to engage in shuttle diplomacy, or to meet separately with the parties.
Under Section 72 of the Code, the Board designates “essential services.” Typically, the first step is mediation so that the parties can fashion an order that best reflects the business. Failing agreement, the Board, often utilizing an informal adjudication model, imposes essential service levels.
One of the most common forums for mediation is the grievance mediation process. Regardless of whether the collective agreement provides for mediation, the Code empowers arbitrators to attempt mediation. It is common place that mediation “breaks out” following the conclusion of opening statements in an arbitration hearing. In addition, either party may, under the Code, request appointment of a settlement officer.
JOINT CONSULTATION COMMITTEE (JCC) AND RELATIONSHIP ENHANCEMENT PROGRAM (REP)
Under Section 53 of the Code, each collective agreement must establish a joint labour management committee to discuss resolution of workplace concerns. To assist in resolving grievances at labour management meetings, any party can request appointment of a mediator by the Mediation Division.
Upon a joint written request, the Mediation Division also offers the REP program to parties experiencing difficulties in their relationship (www.lrb.bc.ca/mediation/relation.htm).
In non-union settings, parties are turning to mediators to help them resolve wrongful dismissal disputes. Arbitration clauses are becoming more commonplace.
Mediation continues as a progressive workplace dispute resolution model. Mediation and arbitration continues to be the primary method of dispute resolution in labour and employment law.
Najeeb Hassan is a former Vice Chair of the Labour Relations Board and is a partner in Heenan Blaikie’s labour and employment group, where his practice includes the conduct of mediation and arbitration matters.
This article was published in the April 2011 issue of BarTalk. © 2011 The Canadian Bar Association. All rights reserved.