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A survey of mediation techniques

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A survey of mediation techniques

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Content A SURVEY OF MEDIATION TECHNIQUES
by
Norman Nierenberg
A Thesis Presented to the
FACULTY OF THE GRADUATE SCHOOL
UNIVERSITY OF SOUTHERN. CALIFORNIA
In Partial Fulfillment of the
Requirements for the Degree
MASTER OF ARTS
(Economics)
June 1956
UMI Number: EP44745
All rights reserved
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U N IVE R SITY O F S O U T H E R N C A LIFO R N IA
GRADUATE SCHOOL
UNIVERSITY PARK
LOS ANGELES 7
Ec. '5& NblS
This thesis, written by
NORMAN NIERENBERG
under the guidance of h.d&.-Faculty Committee,
and approved by all its members, has been pre
sented to and accepted by the Faculty of the
Graduate School, in partial fulfillm ent of the
requirements fo r the degree of
MASTER OP ARTS
........... S._R.._T OVmSEND__
As sis tant Dean
Date....... ...... 1.^.6.................
Faculty Committee
TABLE OF CONTENTS
CHAPTER PAGE
I. INTRODUCTION......................... 1
The problem .............................. 1
Statement of the problem ............... 1
Importance of the problem ............. 1
Methods of approach to the problem .... 4
Organization of the thesis ............. 4
Review of the literature ............. 5
Source of the data ................... 7
II. THE MEDIATION PROCESS ................... 8
Historical background ................... 8
Significance and function of mediation . . 10
Art or science ............... 10
Mediation as part of collective
bargaining .......................... 11
Relationship of conciliation and
mediation 14
Mediation and arbitration ............. 18
Tripartite arbitration ............. 18
Permanent impartial chairman ......... 19
Distinction between mediation and
arbitration ................... 20
Ill
CHAPTER PAGE
Mediation as a voluntary procedure . . . 21
Voluntary mediation by agreement
of disputants ................... 22
Inherent limitations of mediation . . . 23
Mediation procedure ................... 24
Types of mediation ................... 27
>
Organizational forms of mediation . . . 23
Mediation conducted by a single
mediator ......................... 29
Mediation by a group of individuals . 31
Tactical and strategical mediation . . . 32
Preventive mediation ................. 34
Preventive mediation as an
educational process ........ 34
Areas of activity ............... 35
Preventive tactical mediation . . . 36
Summary 36
III. MECHANICS OF MEDIATION ................... 39
When should mediation occur ............. 39
Intervention in early stages
of conflict ..................... 40
Intervention immediately prior or
after deadlock ................... 41
iv
CHAPTER PAGE
Impartial umpire ..................... 43
Conferences ............................ 46
Getting the parties together ........... 47
j Preliminary conferences 48
Time and place of bargaining
sessions .......................... 49
Full expression of positions........... 50
i
I Mild refrigeration and deep
■ freeze technique .... 51
! Traumatasonic technique ....... 53
i
| Multiple confusion technique ......... 53
J Audio visual technique ............ 54
The passive technique.................. 56
Obtaining a true perspective........... 58
The real issue ..................... 59
Influencing positions ................. 60
The breaking-off position ........... 62
Suggestion of alternative solutions . . 64
Areas of reasonable expectation . . 65
The gimmick 66
Joint meetings vs. separate meetings . . 67
When joint sessions are more
feasible............................ 68
V
CHAPTER PAGE
When should separate sessions occur . . 69
Other means of mediation .............. 71
Semi-permanent vs. ad hoc mediators . . 73
Summary .............................. 75
When should mediation occur.... ......... 75
Conferences ....................... 76
Other means of mediation........... 7$
IV. THE MEDIATOR'S TOOLS 80 j
i
Personal characteristics of the mediator . 80 ;
Mediation skills ..................... 81i
; Impartiality 84 j
j f
> Knowledge and experience......... 87 j
j *
Other qualifications............. 88
V Institute of Industrial Relations,
University of California study . . . 89
The pressure factor ..................... 91
Real and false pressures ............. 92
The strike problem....................... 93'
The strike deadline as a tool .... 93
Inter-industry propensity to strike . 95
I
The timing of the settlements .... 99 j
Public opinion..................... 101 |
Fact-finding 103 i
VI
CHAPTER PAGE
Economic pressure ......................... 104
The economic position of the parties . . 105
Summary ............................. 106
Personal characteristics of
the mediator ....................... 107
The pressure factor..................... 10S j
The strike problem ..................... 10S j
i
The Kerr and Siegel s t u d y ................. 109 j
i
Timing of recommendations and I
settlement ......................... 110 j
Public opinion ......................... Ill j
Fact-finding Illj
Economic pressures ....................... 112
V. SUMMARY AND CONCLUSIONS....................... 113 ,
The mediation process ....................... 113
Disagreement as to function and
scope of mediation ................... 113
Arbitration and mediation................. 114 >
i
Tactical, strategical, and preventive
mediation 114 .
I
Form of mediatory agency influences
mediation techniques ................... 115
VX1
CHAPTER PAGE
Mechanics of mediation ................... 115
Timing of initial intervention .... 115
Premature entrance could be harmful . . 116
The impartial umpire ................. 116
Conferences ........................... 117
Preliminary conferences ............... 117
Joint of separate sessions............ 117
Many approaches to mechanics
of mediation......................... 11$
Non-conference mediation ................. 119
Semi-permanent vs. ad hoc mediators . 119
The mediator1s tools 120
Personal characteristics of the
mediator .............................. 120
The pressure factor................... 121
The strike problem ................... 121
The Kerr and Siegal s t u d y ............. 122
Timing of recommendations and
settlement ............................ 122
Public opinion ....................... 123
Fact-finding .......................... 124
Economic pressures ..................... 124
viii
CHAPTER PAGE
Conclusions............................. 125
Research problems..................... . 12?
BIBLIOGRAPHY ....................................... 129
APPENDIX 134
CHAPTER I
INTRODUCTION
I I. THE PROBLEM
! Statement of the Problem*
i
There is a great divergence of opinion as to which |
mediation technique is most likely to be effective in I
I settling industrial disputes. j
i i
j It is the purpose of this thesis to survey some of I
these techniques and to compare them in their application !
! to labor-management relations.
! I
Importance of the Problem.
The maintenance of a favorable climate of indus
trial relations to insure the cooperation of labor and
management is a task of primary importance in the world
today.
In the United States, the leader of the free world,
the objective of uninterrupted and maximum production of
goods for war and peace is of vital concern to all people
I
everywhere, both free and enslaved.
Nobody wins in a test of economic strength. The
strike hurts everybody. The employer loses production and ,
2
profits, the employees are deprived of their pay checks,
i
and both the income and the welfare of the nation suffer.
The alternative to the strike or lockout is the
use of settlement machinery, such as fact-finding boards,
boards of inquiry, conciliation, mediation, or arbitration.
In recent years there has been a great upsurge in
the use of the mediation process-*- for several reasons: (1)
the strong resistance on the part of both management and
labor to a legislatively-imposed system of compulsory
i arbitration, (2) the increasing acceptance of mediation
as part of collective bargaining and in the prevention of
'3
labor disputes, as distinguished from the settling of
| - * - "The cornerstone of our disputes settlement policy’
is that'of mediation."— Frederick H. Bullen, "The Mediation
Process," Proceedings of New York UniversityTs First Annual
Conference on Labor (“ New York: Mathew Benten and Company,
194$), p.13T. (Mr. Bullen was Executive Secretary of the
New York State Board of Mediation when he wrote the
article.)
2 Ibid., p. 106. (Further discussion, pp. 106-111)
3 Edward Peter, Conciliation in Action (Boston:
National Foremenfs Institute, Inc., 1952), pp. viii-ix;
Cyrus S. Ching, Review and Reflection (New York: B. C.
Forbes and Sons Publishing Company, Inc.), pp. $1-$$; Fed- !
eral Mediation Service, Seventh Annual Report Fiscal Year.
1954 (Washington: Government Printing Office, 1955), PP*
. 1-23; and Jack Winter, How the Federal Mediation and
Conciliation Service Helps - Small Business (Washington:
Government Printing Office, 1954), pp. 1-3.
3
disputes, and (3) the enactment of Federal and State
legislation providing for the mediation of labor-manage-
ment conflicts which are detrimental to the public
interest.^-
The importance attached to the mediation process
and the major part it is destined to play in protecting
industrial welfare make the constant assessment and re-
evaluation of existing techniques, methods, or approaches
mandatory, so that more effective techniques for using
the mediation process will be utilized.
Inasmuch as conciliation and mediation are apparent
ly part of the same process, these terms are used inter
changeably throughout this study. A subsequent chapter
i
discusses the prevailing opinions of writers and prac
titioners in the field of mediation regarding these terms.
No evaluation is made in this thesis as to which
techniques are the most successful or most likely to suc
ceed. This is a value judgment, about which there is
widespread disagreement. Furthermore, the study is con- 1
fined entirely to the United States.
4 United States Bureau of Labor Standards, Federal j
Labor Laws and Agencies (Washington: Government Printing |
Office, 195377 99 pp; and United States Bureau of Labor
Standards, State Authorities Engaged in Mediation and Con- 1
ciliation Activities (Washington: Government Printing
Office, 1950), 32 pp.
4
II. METHODS OF APPROACH TO THE PROBLEM
I Organization of the Thesis.
This survey is divided into five chapters. Chap
ter I states the problem and establishes its importance.
I
A review of the literature and the source of data are
presented therein. j
I
The second chapter deals with the mediation process.|
| At the outset a brief historical sketch is developed. This j
I i
| is followed by a study of the significance and function of
mediation. The mediation procedure is then described. In j
addition, kinds of mediators and types of mediation are
discussed.
A critical analysis of the mechanics of mediation
is found in the third chapter. Conference and non
conference techniques are examined.
Chapter IV describes the mediators tools. The
personal characteristics of the mediator, mediation
skills, and selection of mediators are included. Various
i
aspects of the pressure factor are also dealt with.
A recapitulation of the principal ideas is brought
out in the final chapter. Some conclusions are given and j
several other problems, for which research could profitably
be undertaken, are suggested.
5
Review of the Literature.
Numerous books have been written on industrial re-
i
I
lations. Many of these are studies in labor-management
relations. Voluminous material is available concerning
|
j arbitration. Several investigations have been made of the
conciliation and mediation process and specific problems
in connection therewith. Articles have been published on j
i
such phases of mediation as the pressure level in media- |
i tion, public opinion in relation to the mediator, the
i
j personal factor in mediation, and the characteristics of
a successful mediator. In a few instances individual
techniques have been reported, but usually as part of a
j larger topic. However, there is no evidence of any study
or survey of many mediation techniques, such as is the
objective of this thesis.
Reference has been made most frequently to the
following books: Edward Peters, Conciliation in Action;
Cyrus Ching, Review and Reflection; and Elmore Jackson,
Meeting of Minds. ;
Peters1 book is a synthesis of his techniques and
. methods as applied to actual cases. It is essentially a
1 I
i
product of his own experience. His techniques are used
as a point of departure in this survey.
6
Cyrus Ching*s story illustrates the importance of
timing and emotionalism in labor relations. It is a
record of the observations and experiences of one of the
most prominent mediators in the country during the last
half century, and embodied in this work are his techniques
and philosophy for successful mediation. This colorful
I
book is rich in actual labor and management history, since j
i
Ching played a very active role in several famous industry-j
wide conflicts. S
|
The purpose of Jackson*s work was to determine j
whether the experiences in labor and international dis- j
putes are sufficiently similar for the United Nations to
| profit from the more extensive labor mediation experience.
The question asked was how could the techniques used in
the mediation of labor disputes contribute to the solution
of conflicts among the nations of the world. This book
deals with the handling of labor strife in the United
States and selected European countries with emphasis on
mediation. General practices and techniques of mediation t
I
are presented with an analysis of similarities and dis
similarities between international disputes and labor dis
putes. The material on mediation techniques in the !
United States is general and brief.
7
Source of the Data.
The most recent data available on mediation in
labor disputes has been used. Most of the significant
books, periodicals, digests, and reports within the last
five years have been studied. Special study was made of
the reports of the Federal Mediation and Conciliation
Service, National Mediation Board, and the Annual Digests
of State and Federal Labor Legislation. Intensive study
was made of the latest material in the Industrial Rela- '
tions Research Association publications, Industrial and
Labor Relations Review. Labor Law Journal, Monthly Labor
Review, and the American Economic Review.
CHAPTER II
THE MEDIATION PROCESS
This chapter is devoted to a discussion of the
nature, significance and function of mediation. A brief
historical development is presented and mediation pro
cedure is outlined. The final section on types of medi-
| ation includes an analysis of organizational forms of
1 mediation machinery.
I. HISTORICAL BACKGROUND
Mediation is probably as old as the hmstory of
man. It has arisen from the need that men have to live
together and share the goods of the world with a minimum
of conflict.^ A third party had to assist in resolving
the disputes.
Down through the centuries, there have
been many types of mediators— the oracles in
primitive days, the priests in Biblical days,
the country doctors in more modern times, and
the highly trained specialists of today. The
successful head of a household must be a mediator
of a sort. Through the years mediation has been
Cyrus S. Ching, Review and Reflection (New York
B. C. Forbes and Sons, Inc., 1953), p. 67.
successful more often than not, men have
learned to live together a little better,
and civilization has advanced.
Mediation has been used with collective bargaining
:in the United States since the inception of the latter
I
■procedure for better industrial relations.
I
; The Federal Governments mediation activity can be
jtraced back to the period of the War Between the States,
i Rapid industrial development in the latter part of the
I nineteenth century accelerated it and resulted in the need
for a permanent agency to assist in handling disputes. In
19135 the United States Conciliation Service was set up in
1 the new Department of Labor to settle disputes and to estab
lish a pattern of industrial relations behavior to minimize.
conflict. '
The United States Board of Mediation was established !
;under the Railway Labor Act, in 1926, to handle disputes in
|the railroad industry and this was replaced by the National■
Mediation Board in 1934* Commercial airlines were added to
:the jurisdiction of the board in 1936.
The present Federal Mediation and Conciliation
Service was created under Title II of the Labor Management
Relations Act of 1947. With this development of federal
10
governmental mediation activity has come state, city, and
territorial mediation and conciliation agencies.
I
Mediation is now widely accepted in the United
States as a proper method of attempting to resolve labor
disputes. The type of a particular controversy will de- I
termine whether the mediator will be from a governmental J
, i
agency or from a private source. |
i
i
Federal mediation machinery is generally used for j
I
J disputes affecting interstate commerce or the national j
| welfare. j
II. SIGNIFICANCE AND FUNCTION OF MEDIATION
I As with the divergence of opinion concerning which
mediation techniques to use in a particular case, there is :
no definite agreement as to the significance and function
of mediation. The present discussion is designed to de
velop some concrete ideas about what the process consists
of and what it does. This attempt is made through an
analysis of the viewpoints of outstanding practitioners
and students in the field.
Art or Science.
Mediation has been called an art, a science, and
sometimes both. In a recent.conference on industrial
relations, David L. Cole, former director of the Federal
11
Mediation and Conciliation Service, said, "Mediation is
; simply the ancient art of the peacemaker.When Jackson
wrote on general practices and techniques of mediation,
he emphasized the fact that guideposts for a mediator*s
1 conduct suggested by several mediators are "suggestive of
j
the present state of the *art and science* of labor
mediation."^
An explanation of the nature and function of media-
j tion has also been sought through the relation to collec-
; tive bargaining. Attempts have been made to define it by
placing it within the framework of industrial relations. j
/j Mediation as Part of Collective Bargaining.
i
Ching attempted to identify the mediator.
The mediator has been identified as one
who attempts to settle differences between
employers and groups of employees only in
the very short stretch of history that col
lective bargaining has been used as a device
for management and labor to live together
in their common area of endeavor. . . . 5
David L. Cole, "Significance and Function of
Mediation," Proceedings of Sixth Annual Conference on In
dustrial Relations (Buffalo:University of Buffalo,195477p5.
^ Elmore Jacksonj Meeting of Minds (New York:McGraw-
Hill Book Company, Inc., 1952J, p. 24*
5
Ching, 0£. cit.. pp. 67-6S.
12
Chalmers pointed out that the conciliation process
could be defined in terms of its basic objectives.^ r , The
objectives of conciliation,” he stated,"are (1) to max
imize successful collective bargaining, and (2) to main-
7
tain the industrial peace.”
In using a descriptive phrase, Peters declared that
I
"conciliation is a searchlight focused on a particular
$
labor dispute." His theme, as analyzed in a book review |
by Yagoda, was to explain some "basic characteristics of
! the mediator1s effect on the collective bargaining !
9
transaction."
Allan Weisenfeld of the New Jersey State Board of
l
Mediation wrote that "mediation is an extension of collec
tive bargaining, not a substitute for it."^
^ W. Ellison Chalmers, "The Conciliation Process,”
Industrial and Labor Relations Review. 1:337, April, 194$.
^ Ibid.. p. 341.
8
Edward Peters, Conciliation in Action (Boston:
National Foremens Institute, Inc.,1952), p. 125. I
I
9
Louis Yagoda, "Review of Conciliation in'Action,”
Industrial and Labor Relations Review.1:635. July, 1953.
Allan Weisenfeld, "Some Thoughts on Labor Media- 1
tion," Industrial Relations-Research Association. Publi
cation 12 (Madisonf Wisconsin: Industrial Relations Re
search Association, 1954), p. 282.
13
I Another view propounded was that mediation is a
j
supplementary aid to collective bargaining.^
Arthur Stark, Executive Secretary, New York State
Board of Mediation, displayed both a negative and positive
approach in appraising mediation, when he discovered this
i
situation:
I might say that mediation is perhaps a
necessary evil. In a perfect world there would
have to be no mediation; employers and unions,
| all being very wise and reasonable, could readily
J reach agreements. But this is an imperfect
j world and it is that imperfection which makes
| the process of mediation necessary. I would
look on mediation as an alternative, an alterna
tive to strike, an alternative to poor relations
between employers and unions, an alternative
to an indefinite stalemate. As an alternative
to these things, I would say it is a process 1?
which is constructive and which should be used.
Perhaps one of the best descriptions of mediation
is this: "Mediation is only a part of collective bargain-
13
ing: it is in a sense a lubricant, perhaps a catalyst."
For a discussion of this concept, see Harold ¥.
Davey, Contemporary Collective Bargaining (New York:
Prentice Hall, Inc., 1952), pp. 290-291«
1 7
Arthur Stark, "Comment on Government Mediation
1 and Free Collective Bargaining," Proceedings of Sixth
Annual Conference on Industrial Relations (Buffalo:
University of Buffalo, 1954), P» 13*
13
Cole, o£. cit., p. &.
i
14
Cole admirably summed up present thinking on
; mediation in the following manner:
i
While the varying viewpoints have not
always been plainly expressed, there is no
clear agreement as to the nature and function
of mediation. In industrial relations it is
commonly called an adjunct or aid to collective
bargaining, yet many criticisms of mediation
or of mediators stem from a concept of mediation
which is a denial of this theory. It is charged i
that mediation is too early or too late, that !
there is too much or too little of it, that the
mediator is too timid or too aggressive, that
he interferes too much or has exhibited too
| little imagination. Most of these criticisms
| really boil down to a simple fact, which is j
that the dispute took too long to settle. ^ i
i
For a more comprehensive understanding of mediation |
!
i
j a probe has been made into its significance and function j
I in the next section.
Relationship of Conciliation and Mediation.
A search of the literature revealed some interesting
variations in opinion as to the scope of mediation. Some
writers in labor relations separate the functions of con-
15
ciliation and mediation. They feel that the
14 Ibid.. p. 5*
15 '
Davey, op. cit.. p. 296; Ching, op. cit.,p. 69;
Irving Weschler, ’ Who Should Be a Labor Mediator?"
Personnel,26:2, November, 1949; and Edgar. L. Warren, "The
Role of Public Opinion in Relation to the Mediator,"
Proceedings of the Fifth Annual Meeting of the Industrial
Relation*s Research Association (Madison, Wisconsin:
Industrial Relation’s Research Association, 1953), P* 5»
15
conciliator's job is to keep the parties negotiating
until a solution to the dispute is found, without making
any positive recommendations.
Mediation, on the other hand, implies a broader
j function than conciliation. The mediator offers suggested
|
| solutions to the disputants.
i Ching drew from his wide experience as a mediator
| when he stated:
j I have been asked many times to tell the
| difference between the words "conciliation®
; and "mediation." The laymen and many in the
labor relations business use the word synony
mously. But the meanings really are quite
different. Conciliation means getting the
parties in the frame of mind to talk to
each other. Mediation implies an effort to
bridge the gap of differences between the
parties.1°
This distinction was upheld by Yoder, Warren, and
Bernstein:
The mediation process should be distinguished
from conciliation and arbitration even though
the terms are at times used interchangeably by
laymen as well as experts. An adequate defin
ition of mediation refers to the attempts by a
person or group of persons to bring together, or
exchange information between the parties in a ^7
labor dispute so that an agreement can be reached.
T A
Ching, op.„cit.. p. 69.
1? Dale Yoder, et al., Industrial Relation's Glos
sary (Minneapolis: University of Minnesota Press, 1948),
p. 9* Cited by Weschler, op>. cit., p. 2.
1 6
Conciliation which is frequently carried
on by labor mediators in a milder form of
third party intervention which limits itself
to the calling of conferences,- keeping the
discussion on a friendly basis, controlling
the order of business and carrying the pro
posals from one side to the other. Concil
iation does not involve making positive
recommendations, and the conciliator has,no
power to impose terms on the disputants.15
In other quarters the distinction between the
terms has been found useful only for study purposes. When
Carpenter wrote about third parties in labor disputes, he
said, "This distinction between conciliation and mediation
has become blurred in recent years because it is very dif- i
ficult for the two processes to be conducted s e p a r a t e l y ’ . 1^
I
He gave the following explanation:
The mediator’s objective is to propose
a settlement which the parties will adopt.
In the process . . . it may become necessary
for him to urge the parties to continue
negotiations in order that all possible basis
1 c *
- 1 -0 Edgar L. Warren and Irving Bernstein, "The Medi
ation Process," The Southern Economic Journal. 15:441,
April, 1949* Cited by Weschler, loc. cifc.
19
Walter H. Carpenter, Case-Studies in Collective
' Bargaining (New York: Prentice-Hall, Inc., 1953),p. 394.
(Mr. Carpenter is Chairman of the Department of Labor at
Babson’s Institute of Business Administration.)
17
for agreement may become evident. In this
respect the mediator is embracing the
activities commonly associated with conciliation.
Likewise, the conciliator may find it necessary
to offer some plan of settlement before the
parties can see any value in further discussions.
When the conciliator begins to offer suggested
plans for settling disputes he is entering the
field of mediation. Thus in practice concilia
tion and mediation often exist simultaneously,
and the distinction between the two has come
to be minimized. 0
Peters found nthe distinction is between two as
pects of the same process— one passive and the other
21
active." He elaborated in the following passage:
For the purpose of analysis and study the
two aspects of the one process may be segre
gated from each other.' But in life itself,
in the given situation, they are fused
together. In most disputes the peacemaker,
or middleman, functions passively or actively
at different times.
The Labor Management Relations Act of 1947 uses the
23
terms "conciliation" and "mediation" interchangeably.
While they are given different meanings by some students
of industrial relations, for the most part, they are used
20 Loc. cit.
21
Peters, ojd. cit., p. 24.
22 Loc. cit.
23
Howard T. Colvin, "Mediation and Conciliation
Under the Labor-Management Relation’s Act of 1947,” Labor
Law Journal, 1:£9, November, 1949*
IS
j interchangeably. Federal and state enactments have ex-
j pressly recognized this situation. The two terms have
been defined as the act of a disinterested party in
assisting the employer and employee who are parties to a
dispute in reaching an agreement on the issues.
In a study of the scope of mediation, the relation
ship to arbitration needs to be clarified. Accordingly,
these two processes are compared in the next section.
j
|
Mediation and Arbitration.
The essential characteristic which separates media- ■
tion from arbitration is that the mediator’s suggestions
or recommendations may be accepted or rejected, while the
! arbitrator’s decision, although sought voluntarily, is
, final and binding on the parties to the dispute.
Nonetheless, certain forms of arbitration embody
principles and practices sufficient to be labeled by some
writers as mediation processes.
*
Tripartite arbitration. Stark referred to one form
of this type of mediation in the following paragraph:
In many cases what is known as "tripartite
arbitration" is essentially mediation. In
talking the other day with a lawyer with
experience in the transit industry, I asked
why it has developed in that industry that,
19
first, there are so many arbitrations and,
second, they are almost invariably tripartite—
that is, the arbitration panel consists of an
employer member, a union member, and an impar
tial person. He said the reason is that the
parties recognize that a strike in the transit
industry is contrary to the public interest,
and yet they do not want compulsory arbitra
tion. If their own collective bargaining
does not succeed, they present their case to
a tripartite arbitration board. In essence,
this means that collective bargaining con
tinues in an inner sanctum, with the three
arbitrators deciding what the award should be.
The union and employer representatives, not
being perhaps as impartial as we might assume,
each argues his own case and the third man
acts as a mediator. If there should be a
unanimous decision, he would have been a most
effective mediator. I would consider, that
to the extent described, tripartite arbitration
by its concept, and by its practice in many
cases really is a kind of mediation.2^
Permanent impartial chairman. The permanent impar
tial chairman or umpire usually functions as a mediator.
Max Miller, a member of the New York Bar, noted that the
permanent "impartial chairman," or "umpire,” created by an
agreement, involving a large single employer operating on
a multiplant basis or industry-wide collective bargaining
contract, resulted from a desire for recommendations for
^ Stark, op. cit.. p. 15.
25 Max Miller, "Comments on the Doctrine of Accept
ability 'of Labor Arbitration-Awards— Mediation vs. Arbi
tration," Arbitrator Journal. 4:l£2-lS5, autumn, 1949.
j solution to labor disputes, rather than compulsory
acceptance of decisions.
This type of mediation is exemplified in the
clothing industry:
There is a third kind of mediation which
is practical under the guise of the "permanent
impartial chairman" . . . In the clothing industry
in New York there is a permanent chairman who is
supposed to be the final judge of all cases which
come to him. Actually, he makes very few de-
| cisions. What happens is this: he has come to
| know the parties and the problems of the indus
try so well that when disputes are brought to
! him he often consults with the parties and
counsels and advises them. In effect, he
mediates the problems which are brought to him
! for a decision.
| This situation is applicable also in other industries
with a long history of collective bargaining.
t
Distinction between mediation and arbitration.
Although the process of mediation exists, cloaked with a
mantle which bespeaks of arbitration in some instances,
these two devices are separate and distinct. As Kellor
explained, "Mediators are not clothed with authority to
make binding decisions."2^
The mediator attempts to avoid a strike or lockout
by participation in negotiations. The arbitrator
26 Stark, loc. cit.
27 Frances Kellor, American Arbitration,,pp.84e65*
Cited by Miller, op. cit.. p. 1&4.
21
2$
administers justice. Arbitration is a judicial process.
The mediator also attempts to define the arbitrator’s
authority. Warren illustrated this concept:
. . . The latter may be given uninhibited
power to render a decision according to
standards he selects, so called "open-end
arbitration," or the parties may narrow it
within specified limits. Affective media
tion, by reducing the area of disagreement,
delimits the questions lgft for the arbi
trator to decide. ...29
Mediation as a Voluntary Procedure.
Under the federal law, unions and management must J
bargain collectively and in good faith. However, media- j
i tion is not compulsory. Syark’s comments are appropriate I
! here: :
j P
. . . Mediation . . . is voluntary. No one
must mediate, no one is compelled to mediate;
and although the law says the parties shall
cooperate, no one has ever tried to enforce n
cooperation; at least to my knowledge. . .
In another article Stark asserted:
. . . Public mediation agencies invite and
request the attendance of unions and employers;
rarely do they order or direct such attendance.^1
28 Miller, loc. cit.
29 Warren, "The Mediation Processes."op. cit..p.A46.
Stark, o£. cit.. p. 13.
31 Arthur Stark, "Are There too Many Mediators?"
Labor Law Journal. 6:33, January, 1955.
22
Federal, state, and local authorities have the
power to intervene in labor disputes where the public
i
interest is imperiled and to make suggestions, recommen-
32
dations or reports which may or may not be accepted.
Congress has been reluctant to provide means beyond vol
untary mediation for dispute settlements, "because labor
and industry have together executed strong pressure to
place sole reliance for the settlement of disputes upon
i
! 3 3
j the voluntary mediation process.”
f t
I i
The role of the government in mediation is dis- !
cussed in greater detail in Chapter VI of this study. I
i
!
[ Voluntary mediation by agreement of disputants. j
! ' !
Saul Wallen, a prominent arbitrator, distinguished volun
tary mediation from the mediation based on either the
initiative of the government or the use of mediation as
an offensive weapon:
Voluntary mediation is an agreement by
the parties well in advance of a dispute that
a mediator will be jointly requested to aid ;
32
' For further discussion of'this problem, see:
Jackson, pp. cit.. pp. 11-24; Ching, pp. cit., pp. 63-79; *
Bullen, "The Mediation Process," Proceedings of New York
University First Annual Conference on Labor (New York: |
Mathew Bender and Company, 1948), pp. lb5-113.; Colvin, op. ■
cit.. pp. S9-9Q; and Stark, op. cit.. pp. 33-41* !
33
Bullen, pp. cit.. p. 109* !
23
them both in the event direct negotiations
do not produce an agreement. That kind of
advance planning implies an attitude toward
the mediation process calculated to stress
the more constructive features.34
j Inherent Limitations of Mediation.
| The effectiveness of the mediation process and the
success of a particular technique applied is diminished by-
several limitations in the mediation process. In discus
sing the types of controversies in which mediation gets
i
j the best results, Warren wrote:
Its achievements are most impressive when
the issues involve ‘ 'interests*1 rather than
"rights," money as against principle. The
questions must have a looseness in the joints
to be mediable. Disputes over wages, hours,
holidays, vacations, and related issues are
the meat of mediation while those over union
security and management prerogatives present
greater difficulties.33
He explained that limitations also result from the loose
ness of the process; slips are inevitable because so much
depends upon subjective factors.
The research and technical staffs possessed by
large corporations and unions generally make them
34 Saul 'Wallen, "Voluntary Mediation," Industrial
Relation's Research Association. Publication 12 (Madison,
Wisconsin: Industrial Relation's Research Association,
1954), p. 2^5. A discussion of contractual mediation is
found in Stark, op. cit., p. 41.
35 Warren, "The Mediation Process,"op. cit.,p.456.
24
independent of government mediation facilities. Warren
found that mediation is seldom effective or even per-
f
j mitted in such cases; that mediation has the greatest
utility in small and intermediate cases.
I III. MEDIATION PROCEDURE
i
{
i The form of procedure that is followed in the
!
j mediation process has become substantially standardized.
: Alternative procedures will be substituted, and some per-
j
| haps may not be used, depending upon a complex of factors |
conditioning the dispute situation. Variables could in- j
elude the practices in the industry; the abilities and
temperaments of the parties involved including the media
tor; and the contractual agreement. These variables,
among others, will determine the kind of mediator to em
ploy, the type of mediation that wjLll be followed, and the
technique for maximum effectiveness the mediator will use.
Chalmerfs admirably summarized mediation procedures
developed during a recent series of conferences,"^ by the
Program Division of the United States Conciliation Service
These conferences were-attended by a large number;
of Commissioners of Conciliation, Representatives of Man- 1
agement, Labor and other government'agencies and students
of collective bargaining. Chalmers, op. cit.. p. 33$.
included the following:
1. The conciliator usually enters at the
request of one or both parties. His first
contact will be with the requesting party.
Since, under most economic circumstances,
the union is the party initiating the pressure
for change, the conciliator most frequently
begins by responding to a union request.
Occasionally, he enters on bhe basis of a
joint request. Such a request has the con
siderable advantage to the conciliator and
the parties establishing without question
the impartial approach expected of him. It
also represents their agreement that his
services are welcome and will be acceptable
to both.
2. He meets separately with both. These
preliminary conferences are held at an early
stage of the conciliator’s participation, but
not necessarily before the first joint session.
They have three objectives (a) to establish a
confidential relationship between the con
ciliator and each party, (b) to provide a pre
liminary background explanation of the nature
of the dispute, and (c) to seek out the areas in
which it will be most propitious to resume the
negotiations. Such explanations are more or
less extensive, depending on how much is necessary
to accomplish these goals.
3. He brings the parties into a joint con
ference. When necessary he decides the time
when a session will be most strategic and its
location.
4. He guides the bargaining procedures.
The conciliator will preside at the sessions,
maintain order, recess and reconvene the
sessions, agree on the agenda, and the order
and manner of presentation, and stimulate the
negotiations whenever they seem to be lagging,
or bring them back to the subject whenever it
appears appropriate. Again, obviously his
direction of this process is as limited and
as subtle as possible, within the limits of
his judgment of the need to make progress
toward an agreement.
5. In the recesses between joint bargain
ing sessions he conducts separate conferences
with each. In these sessions he explores
what lies behind the position of each side
much more intimately than is possible in the
joint session. Here he seeks (a) to analyze
with each what are the real issues and how
vigorously each side is determined to main
tain its position, (b) to clear up misunder
standings and (c) to seek out compromise
alternatives.
6. Whenever the occasion permits, the con
ciliator will urge the parties to resume nego
tiations without him. Such a suggestion may be
made at any time during the course of the bar
gaining. It should be made whenever the con
ciliator feels that such a procedure has hope
of succeeding.
7. The conciliator suggests the consider
ation of alternative solutions. . . .
S. He seeks participation of the superiors
of one or both parties. . . when the participant
(a) has not sufficient authority and prestige
to settle or (b) is taking what appears as too
limited and short sighted a view of his own
interests and problems. It is done usually by the
addition rather than the substitution of the
superior.
9. He may suggest alternative procedural
steps. . . . This may invoke postponement of a
deadline. . . or factual investigation before
negotiations are resumed or . . . change of
location. Or it may be for the reference of
specific issues to arbitration.
27
10. There may be a final procedural
step; the recommendation to both parties
of the specific terms of a settlement.37
The manner in which this procedure is used depends
upon the mediatory machinery selected and techniques em-
3 8
ployed for special circumstances of a particular case.
IV. TYPES OF MEDIATION
The form of the mediatory agency is part of the
j mediation technique. In comparing means of aiding modern
j industry, Chase noted that:
There is another series of techniques
where conflict is reduced by outside parties--
by impartial chairmen; by government agencies,
| a panel recommended by the bar association, a
| conference out of court in a lawyerTs office
' and so on . . .39
Mediation is either of a private nature or per
formed by a governmental agency. The mediation machinery
may be in the form of one individual or a group of indi
viduals. Various designations have been applied to the
37 These procedural steps are generally used by an 1
individual mediator, as distinguished from a tripartite
mediation panel or a fact-finding board. Chalmers, op.cit.
pp. 348-349. For further discussion of mediation pro
cedure see Jackson, ojo. cit., p. 126. j
3# Jackson, ln£.—cit *
39 stuart Chase, Roads to Agreement (New York:
Harper and Brothers, Publishers, 1951)* P* 163.
28
i
| group device for mediation, such as board, panel, com-
!
j mittee, tribunal, and commissions. The organizational
form employed will be governed by statutory and insti
tutional arrangement and the peculiarities of the dispute.
I
j In the more important industrial conflicts, the parties
to the dispute will be consulted regarding personnel and
procedure.
Mediation may be of a preventive^ kind. It may be
41
j either tactical or strategical. No matter what form
i the mediating device assumes, or which method of procedure
.it adopts, it is essentially a voluntary process.
Organizational Forms of Mediation.
The form of the mediation effort will vary with
the political, economic and social importance of the dis
putants and the goods and services which are produced and
sold. Techniques applied will vary according to the type
^ Federal Mediation and Conciliation Service,
Seventh Annual Report. Fiscal Year. 1954 (Washington:
Government Printing Office, 195577 pp. 17-21; Jack Winter,
How the Federal Mediation and Conciliation Service Helps
Small Businesses . Small Business Administration (Washing-
ton: Government Printing Office, 1954), p. 3; and Ching,
op. cit.. pp. Sl-SS.
^ Clark Kerr, "Industrial Conflict and Its Media
tion," The American Journal of Sociology. 60:230-245,
. November, 1954*
29
of mediation machinery used and the national importance
j of the case. Warren illustrated this clearly:
i
Just as a Presidential fact-finding
board would not be appropriate in a dispute
of a local clothing manufacturer, so the
use of a regular staff conciliator would
i not be considered feasible where the United
i Mine Workers of America and the Bituminous
| Coal Operators are concerned. . . Techniques
! based on personal pressures, such as keeping
J the negotiator in session all night, might
j be quite effective in a dispute involving a
i small foundry, but would be meaningless if
! used as a tactic in a strike against the
United States Steel C o r p o r a t i o n .42
I
j !
Mediation conducted by a single mediator. In some j
situations one of the parties to the dispute acts as the
! mediator. He may be the president, general manager, in-
!
distrial relations director, or other executive of the
company. He is presumed to be above the battle and fair-
minded. Therefore, as Peters explained, ’ ’ when he reverses
one of his subordinates it does not give the appearance of
weakness on the part of the company.^
Mediation may also be carried on by union represen- .
i
tatives, according to Peters. An individual occupying a
Edgar L. Warren, ’ ’ Mediation and-Fact Finding,”
Industrial Conflict (ed. Arthur Kornhause, et al.; New
York: McGraw-Hill Book Company, Inc., 1954),PP» 292-300.
43
Peters, o j d. cit.. p. 95»
30
high position in the international union acts as a concil
iator with a detached attitude toward local union pres
sures. However, lack of complete independence from one
of the parties-in-interest limits the effectiveness of
! mediation of this type.
Their semi-independent function leaves
them open to charges in their own family
of "sweetheart" relationship and under
standings which betray the interests of
the group they represent. . . .4-4
| The single mediator is used more often than boards
! because he is believed to be more flexible and effective
in most labor disputes than the latter form. BullenTs
comment on a comparison of mediation facilities was:
Regardless of the-medium through which
mediation is offered, whether it be through
an all public panel or a tripartite mediation
board or committee, mediation is normally
most successfully led by a single person.
For the mediator’s approach is something of
an art which can be-successfully performed in
many different ways, depending upon the ap
proach of the individual conducting the con
ference. Oftentimes his way of leading the
parties to a successful conclusion can be
interrupted and thwarted by the intrusion of
a different approach by another person.
Therefore, mediation is usually conducted by
a single individual.45
44 Ibid.. p. 96.
^■5 Frederick H. Bullen, "The Mediation Process,"
Proceedings of Mew York University First Annual Conference
on Labor (Mew York: Mathew Bender and Company, 1948),
p. 1197”
31
Jackson also commented on the use of the single
mediator:
A mediation effort is usually less diffi
cult if it can operate within broad terms
of reference and with a maximum of internal
flexibility. This suggests the general
desirability in conflicts in which the empha
sis is on mediating a settlement, of using
uninstructed single mediators.46
Mediation by a group of individuals. It was the
belief of Bullen that mediation conducted by a tripartite
committee, board, panel, or tribunal is most successful
when the industry and members cooperate with and supple
ment the approach taken by the chairman. However, he
understood that there may be difficult situations:
Where the industry and labor members of
a mediation panel become advocates for their
respective sides, successful mediation may be
difficult or impossible. . . . In some situa
tions the possibility of an early successful
conclusion to mediation conferences is en
hanced by the labor and industry members of a
panel ’ ’talking turkey” to their respective
participating disputants. . •*'
Where community concern is strong citizen committees;
will be appointed. However, the chief weakness of this
type of mediation, according to Peters, is that "it is
often practiced by people who have little or no practical j
Jackson, op. cit., p. 146.
^•7 Bullen, op. cit.. p. 119»
32
I g
knowledge of labor relations."
In public emergency labor disputes where the medi
ating and reporting functions are to be combined,Jackso&^
realized there are frequently distinct advantages in the
appointment of a commission instead of a single mediator.
One of the most important reasons for the use of
mediation boards, panels, fact-finding commissions, and
boards of inquiry is with respect to their report-making
function.
What these commissions lose in flex
ibility from having three or five members
they usually make up for through the added
prestige which comes from having the report
made by a group. Other things being equal
it would appear to be human nature to give
greater weight to the carefully considered
and united conclusions of a group of impar
tial and able persons than to the considered
judgment of one equally qualified person.
The commission usually has a greater ability to
"publicly deflate the exaggerated claims of the parties
in conflict" and thus is a more "potent lever" for settle-
51
ment than the single mediator.
Tactical and Strategical Mediation.
Clark Kerr, Chancellor of the University of
^ Peters, op. cit., p. 99.
49
Jackson, op. cit.. p. 150.
Loc. cit. ^ Loc. cit.
33
California, Berkeley Campus, distinguished between
tactical and strategical mediation in a paper presented to
the Second Congress of the International Sociological
Association:
"Tactical" mediation can reduce aggressive
industrial conflict by decreasing irration
ality, by removing non-rationality, by aiding !
in the exploration of solutions, by abetting
the parties in making graceful retreats and
by raising the cost of conflict, but its
general contribution cannot be large;
"strategical" mediation, or the structuring j
of the environment, on the other hand, can I
effect major changes. It involves the
better integration of workers and employers I
into society, the increased stability of j
society, the development of ideological
compatibility, the arrangement of secure and
responsive relationships among leaders and
members, the dispersion of grievances and
the establishment of effective rules of
the game. . . .52 ;
Tactical mediation is the intervention of a third
party to an existing dispute, while strategical mediation
is concerned with creating a favorable environment within
which the parties interact. The purpose of tactical
mediation is to reduce or end an industrial dispute. ,
Strategical mediation is concerned with reducing the inci
dence of conflict and "channeling it along non-destructive
53
lines of development." !
^ Kerr, op. cit.. p. 230.
53 ibid.. p. 236.
34
Preventive Mediation.
Preventive mediation attempts to prevent potential
i
future disputes from occurring. As stated by Winter,
The idea of preventive maintenance as
applied by a businessman to his machinery,
| vehicles, and other items of plant and
; equipment also works in industrial
relations. . . . 54
l
Ching^ realized that removing the sources of fric
tion could result in the avoidance of many labor disputes.
; Paul Prasow, Chief Case Analyst of the Western Wage
Stabilization Board, found that Ttan hour of preventive
mediation applied early in a situation is worth many days
of remedial measures taken after the battle lines are
drawn.
Preventive mediation as an educational process.
That the foundation of preventive mediation is education,
was well understood by Winter when he asserted:
When a mediator engages in preventive
activities he assumes the role of a
teacher. . . who educates without seeming
to instruct. . ‘
^ Winter, loc. cit. ^5 Ching, op.cit.. p. Si.
Paul Prasow, "Preventive Mediation," Labor Law !
Journal. 1:£66, August, 1950. I
57
Winter, ojd. cit., p. 3« i
35
Winter also noted that very often a good deal of pre
ventive work is performed by mediators during negotiations
in dispute situations.
Areas of activity. Preventive mediation tech
niques are practiced in a number of ways. Prasow^ advo
cated the establishment and use-of permanent impartial
mediation machinery for prevention of disputes similar to
the permanent impartial arbitration machinery used for
the adjudication of disputes.
Places where preventive mediation can be effective
in terms of remedial measures suggested by the mediator
were enumerated by ChingP%s: a chaotic wage structure, ill
defined jobs, overlapping wage rates, over complicated in
centive pay systems or job evaluation plans, unsuitable
seniority practices, unwieldy grievance machinery, and a
faulty system of supervision. He also considered detec
tion of trouble spots, diagnosis of the cause of conflict,
and affecting a cure before real trouble develops as of
primary importance.
53
Prasow, op. cit., p. 911.
59
Ching, op. cit., p. 31.
36
Preventive tactical mediation. Kerr has applied
the name of preventive tactical mediation to mediation
activity which "seeks to manipulate the parties and their
fn
relationships in advance in favor of nonviolent conflict."^
In placing this concept intermediate between tactical and
strategical mediation, he stated:
It takes for its province more than the
total relevant environment. It deals with
the relationships of the parties in general.
It may be concerned with a long run change
in the attitudes of the parties toward each
other or toward their mutual problems, with
the nature of the leadership on one side or
another, with the pressures to which the
parties may be subject, with the timing of
contract expiration dates or with the
alliance of the parties.61
V. SUMMARY
| Mediation is probably as old as the history of man-
| kind. Manfs need for a means of settling disputes over the
' allocation of goods and services caused this type of third
i
! party activity to be conceived and practiced.
f
s
! Mediation expanded with the advent and growth of
t
I collective bargaining in the United States. Today the
mediation process is an intrinsic part of the industrial
i fabric and the mediator is regarded as a highly trained
Kerr, op. eft., p. 243* Loc. cit.
j 37
| and skilled specialist.
I
j Much has been written about mediation, but there
i
is no clear agreement as to its significance, function or
scope. Most writers feel that mediation and conciliation
!
| are parts of the same process,and as such the terms can be
i
j used interchangeably.
i
Mediation has also been widely accepted as part of
I collective bargaining, rather than an aid or adjunct, a
i belief held in some quarters.
; "Tripartite arbitration" and "permanent impartial
; ' r
chairman" are forms of arbitration which have sufficient
characteristics of mediation to be labeled mediation
processes. Despite the fact that arbitration, in these
instances, shades into mediation, the two processes are
separate and distinct.
An important function of mediation is to limit the
questions the arbitrator may decide.
The voluntary procedure of mediation has become
substantially standardized; however, alternative proced- i
ures may be substituted or not used, depending upon dis-
; pute conditions. j
Mediation has been classified as tactical, strateg- |
ical, and preventive.
33
Tactical mediation is concerned with reducing or
terminating an existing dispute. The goal of strategical
mediation is to create a favorable environment within
which the parties function. Preventive mediation is en
gaged in removing the causes of potential disputes.
The particular circumstances of a labor-management
j
conflict will determine whether the mediation device will
! be a single individual or a group, such as a board, panel,
I committee, or tribunal.
' The mediation techniques used will be governed by
the form of mediation machinery; the personalities of the j
i
i
mediators and parties to the dispute; practice in the
! industry; and objectives sought. !
The effectiveness of the mediation process or
techniques employed in a particular dispute is determined ;
in some measure by the inherent .limitations of the process.
Mediation is usually more effective where the issues con-
t
cern interests rather than rights and where the cases are i
small or intermediate rather than large. Subjective I
factors in the process cause slips.
The remainder of this thesis analyzes the media- j
torfs tools and the application of various mediation '
techniques to specific problems and procedures.
CHAPTER III
MECHANICS OF MEDIATION
This section examines the application of several
mediation techniques to the problems of when mediation
should occur; and to the various aspects of conference
and non-conference methods of mediation.
I. WHEN SHOULD MEDIATION OCCUR
A fundamental question which has provoked consider
able discussion in recent years is when should the media
tor intervene.
Timing of the Mediation Effort
The proper timing of the mediatorfs entrance into
conflict situation has a considerable bearing on the suc
cess of his efforts.
Several authorities urge that the mediator should
be invited to intervene in the early stages of negotia
tions before a deadlock has been reached. On the other
hand, there are those who claim that a mediator should
enter a situation when an impasse occurs.
A third group advocates the use of an impartial
40
mediator, retained by union and management, as an un
biased advisor for preventing or minimizing the conflict.
The timing of the mediator's entrance into a par
ticular dispute situation is a very essential part of his
technique.
Intervention in early stages of conflict. Advo
cates of early intervention into the negotiations main
tain that it enables the mediator to become thoroughly
| acquainted with issues and personalities and thus better
1 able to handle any roadblocks in discussions."^
Another reason which has been set forth by
Jackson is: 1
I
I
| In labor conflicts It has proved useful
1 for the mediator to be aware of the dispute
at its earliest stages so that his services
may be offered before contending positions
have become firm. He must enter the dis
pute at a time when strategic retreat can
be gracefully executed. . .2
Walter Maggiolo,*"Mediation*s Role on the Labor
Stage," Labor Law Journal. 4:634, September, 1953* (Mr.
Maggiolo was Assistant to the Director and General Counsel
of the Federal Mediation and Conciliation Service when he 1
wrote this article.) j
2
Elmore Jackson, Meetings of Minds (New York:
McGraw-Hill Book Company, Inc., 1952), p. 27.
41
A strong case for early intervention was made
i
| by Ching:
Time after time, red hot disputes brought
to the attention of the service might have
been prevented if early action had been
taken to remove the causes of friction.
Federal mediators always have recognized
the desirability of early assistance to the
parties in dispelling the cause of trouble.
Over the years it was not uncommon for a
mediator to be called into a dispute at an
early stage. . .3
I Intervention immediately prior or after deadlock. i
! I
| It is well known that the difficulties of mediation in-
I
crease, as does the increase in embarrassment that attends]
4 '
concession. In other words, ”a faced saved may be a j
5 I
dispute resolved.” I
However, Ching qualified his statement:
If a mediator finds, upon entering a
dispute that there is evidence that the
parties have not exhausted all possible
resources of their own to bargain out a
settlement, he should be free to send the
case back to the parties for direct nego
tiation. °
The weight of authority holds this view, that is,
a maximum effort in collective bargaining should be made
3
Cyrus Ching, Review and Reflections (New York: ;
B. C. Forbes and Sons Publishing Company, Inc., 1953),P*$2.
^ Loc. cit. 3 Loc. cit. 6 Loc. cit.
42
by the parties prior to the entrance of the mediator.
Peters found that the premature entrance of the
mediator could be harmful:
The basic force that moves the parties
toward agreement with each other is the
i pressure each exerts upon the other. Often
| the first effect of the premature entrance
j of the conciliator is to encourage the parties
; to relax their own efforts to work toward an
i agreement. When the parties ease up the
j pressures on each other, the conciliator has
| nothing to work with except assertions of
! the public concern in the matter and the 7
| desirability of avoiding a costly strike.
1 $
' Easy access to a mediator, Jackson explained, re-
: • l
I moves much of the pressure of responsibility from the J
! ■ i
parties at the bargaining table. However, his position
appears to be rather inconsistent, in that he urged early
entrance into a dispute before positions become too firm
to enable a strategic retreat and yet he wanted the par- ;
ties to exhaust their collective bargaining efforts which
would have the effect of solidifying their positions.
According to Weisenfeld,^ the ultimate effective
ness of the mediator has been diminished rather than i
7 Edward Peters, Conciliation in Action (New London:
Foremen’s Institute, Inc., 1952), p. 101.
^ Jackson, op. cit.. p. 27.
9 Allan Weisenfeld, ’ ’Some Thoughts on Labor Media
tion,1 ’ Publication 12 of the Industrial Relations Research
Association (Madison. Wisconsin: Industrial Relations
Research Association, 1954), p. 232.
43
enhanced by the Labor Management Act of 1947, because it
brought the mediator into negotiations prematurely.
Peters believed that "the conciliator can exert
his maximum effectiveness if he enters the dispute when
there is a deadlock before a strike takes place."^
He reasoned thus:
Once a strike takes place the obstacles to
settlement mount rapidly. Both sides have
committed their forces with a certain appear
ance of irrevocability. . . .11
Jackson confirmed this in the following passage:
The procedure of mediation in the United
States has been to enter a dispute just pre
vious to, or just following the time when
the parties have reached a deadlock. Govern
ment mediators have chosen this moment pri
marily because any further delay is likely to
result in a strike, and any earlier entrance
might unnecessarily interfere with the normal
process of direct negotiation. It is also
generally assumed that at this moment the
parties will be most susceptible to mediation.
Impartial umpire. Through personal experience
Wallen £ound that the impartial mediator retained by labor
and management is the most effective technique for alle
viating industrial disputes. In illustrating his conten
tion, he cited the situation in which, as permanent
Peters, o£. cit...p. 102. ^ Ibid.. p. 103.
12 Jackson, o£. cit., p. 27*
! 44
impartial umpire for an association of employers and a
union of fairly good size, he was engaged to stay close
to problems of the parties besides mediating grievances.
The parties wanted his assistance to implement a new
I
i agreement, since he had become familiar with competitive
I and technical problems of the industry after several years
i
i as an umpire. Two contracts were written.
The first clash was over the new agreement in 1949-
Negotiations opened before the strike deadline. The
; Federal Mediation and Conciliation Service intervened with
I I
no results. Wallen was posted on the progress of the j
talks and was subsequently asked to assist with negotia
tions. He was familiar with the problems concerned, so
was able to deflate arguments. His suggestions for agree
ment were also accepted.
Wallen’s reason for this successful solution was
that his knowledge of the industry and association with
negotiators over a great period of time gave him suffi
cient indications, none tangible enough to be called an
offer, to form the basis for an intuitive judgment.^
^ Saul Wallen, "Voluntary Mediation," Publication !
12 of the Industrial Relations Research Association
TMadison, Wisconsin: Industrial Relations Research Asso
ciation, 1954), p. 2S2.
45
It was the contention of Peters that:
The California State Conciliation
Service has had gratifying results in
mediating several of these types of situ
ations. Its experiences suggest that the
possibilities of mediation of issues which
arise during the life of a contract have
only been scratched. . .14
The parties are able to test the merits of their
positions by means of an impartial mediator, according to
Prasow.l^
In addition he was of the opinion that”preventive mediation
brings the mediator into a situation long before he can
Conciliation Service and other mediators tends to refute
Weisenfeld*s opinions cited above.
Weisenfeld, However, held a contrary view:
When parties are in need of expert
advice during contract terms and preceding
should seek out
serve a useful purpose."^*'7 The experience of the Federal
Peters, op. cit., p. 111.
15
^ Paul Prasowi "Preventive Mediation," Labor Law
Journal. 1:S66, August, 1954.
1 &
Weisenfeld, op. cit., p. 2$2.
Loc. cit.
46
II. CONFERENCES
The heart of the mediation process is the confer-
ence. It is here where the parties are face to face that
the mediator makes his most significant contribution.
i
! The mediator tries to cool down passions and dissipate
i
j rampant emotions so that reasoning can have full play. He
will attempt to deflate facts in order to acquire a true
perspective and raise doubts in the minds of the parties
' about their positions so that agreement will result.
Bullen described the mediator as a "participant in j
negotiations, making proposals, recommending solutions and
1 $
persuading the parties to adopt new approaches." Then
he continued: 1
He must seek methods of dealing with a
host of technical, economic, legal and
personal relations problems. His approach
must be impartial and constructive and
create a desire on the part of labor and
management to explore with him reasonable
solutions to problems which vex them both.
Mediation is concerned with human relations—
clarifying misunderstandings as to motives
and objectives, attempting to minimize the
1 A
Frederick H. Bullen, "The Mediation Process," !
Proceedings of New York University*s First Annual Confer- :
ence on Labor (New York:Mathew Bender and Company, 194$),
p. 114* '
47
emotional approach and insisting upon
as close an adherence to known facts
j as possible.19
i
j Getting the Parties Together
| The mediator enters at the request of either one or
i
! both parties. His first contact is usually with the re-
i
j questing party.
i
j Sometimes this request by one of the
J parties for the assignment of a concilia
tor is viewed by the other party with a
great deal of suspicion and skepticism.
The conciliator must overcome the atti
tude that he was asked into the situation j
in order to grind a partisan axe for the |
requesting p a r t y . j
A joint request establishes without a doubt the im-j
partial approach expected of the mediator and as such j
21
Chalmers believed it is of considerable advantage to him.
Due to the trememdous emotion inherent in the dis
pute situation, it is difficult to get the parties together
and this may call for preliminary conferences.
Jackson found that "disputants may come to a medi
ator with emotions, at such a high pitch that they are
19 Ibid.. pp. 114-115.
20
Peters, op. cit.. p. 106.
W. Ellison Chalmers, "The Conciliation Process,"
Industrial and Labor Relations Review. 1:34$, April, 1948.
4S
unwilling or unable to sit in the same room with one
another."22
One proven technique for getting the emotions
cooled down is "to get the parties together around less
; controversial subjects, such as procedure for the conduct
i 23
| of the mediation." To accomplish this, the mediator
i
may have to act as a messenger between the isolated groups
during this period.2^
: Preliminary conferences. Preliminary conferences
have been widely accepted by mediators as a means of be
coming acquainted with the parties and acquiring a pre-
i
liminary background of the dispute.
2 5 '
Chalmers found that these separate early confer
ences establish a confidential relationship between the
conciliator and each party; provide a background for the
dispute; and suggest propitious areas for resumption of
negotiations.
Stuart Chase observed: "A good conciliator must
know when to interview jointly and when to see each side
22 Jackson, op. cit.. p. 31* I
2^ Loc. cit. 2^ Loc. cit.
25
Chalmers, op. cit.. p. 348*
49
in separate rooms; when to let them blow off steam and
26
when to calm them down.n
"A joint meeting arranged without . . . preliminary
activity might freeze the two disputants all the more
27
firmly in their positions," wrote Peters. Extensive
separate explorations are necessary "in order to plough
up some ground for a change in the positions of the par-
28
ties, before bringing them together." !
i
i
Time and place of bargaining sessions. The mediator'
when necessary decides the most strategic time and loca- !
29
tion of a bargaining session.
Peters and his associates on the California Con
ciliation staff share the opinion that whatever meeting
place is desired by the disputants should be agreeable to
30
'the mediator. However, many conciliators believe that
conciliation service headquarters provides a better atmos-
31
phere because it is a neutral meeting ground.
Stuart Chase, Roads to Agreement (New York:
Harper and Brothers, Publishers, 1951), p. 163.
^ Peters, o£. cit., p. 105. Loc. cit.
29
Chalmers, o£. cit., p. 349* j
30 31 i
Peters, o£. cit.. p. 107- Loc. cit.
50
Full Expression of Positions
Confidence in the mediator and the procedure must
be built up in the initial period. This is accomplished
through the full expression of views by representatives
| of both parties and the assurance that what has been said
i
is understood.
Jackson advocated the following technique to
accomplish confidence:
| It is good practice, after each representa-
i tive has spoken, for the mediator to express in
: his own words his understanding of what the
representative has said. In doing this he
must exercise extreme caution not to give an
idea of undue sympathy to the position of one
party or the other. Any real or imagined
bias will make the later tasks much more
difficult.
Until each side has had an opportunity to
present its position and has been assured that
this position has been understood, the minds
of the parties are pretty well closed to any
argument or suggestion. But after each side
has had its say and has been understood there
is a disposition to give sympathetic under
standing to subsequent discussion often to
quite an extraordinary degree.32
3*
Jackson recognized, however, that this procedure should
stop when reiteration of points and arguments began to
solidify positions.
Jackson, o£. cit., pp. 31-32.
33
Loc. cit.
51
Mild refrigeration and deep freeze technique.
Major Charles T. Estes developed an unusual technique for
"drawing the emotion out of both sides to a labor dis-
34
pute." He used communications, semantics and psychology
| to achieve his objective. He imitated psychoanalysts to
get the parties angry at him, so that they would be less i
3 5 I
angry at each other.^ j
1
An original procedure used by Estes for resolving !
i
i a big dispute, in 1940, between six unions and a large
corporation was to have the representatives from both
sides take turns reading the contract aloud.
EaJch man would read a section while the
others listened. Then they would discuss
the document clause by clause. Contro- !
versial clauses were put aside in two cate- j
gories labeled "mild refrigeration” and I
"deep freeze." Later after the disputants
were calm enough to listen, first the mild
items were taken out for action, and finally
the serious items.
In two days . . . the lesson was learned.
Everyone at the meeting really knew the terms
of the contract and went back to the bench
and office to pass the word along. The
listening, the repeating, the taking turns as ;
discussion leaders had got the several clauses
into the nervous systems of everybody there.
We had conditioned them to communicate. This
particular contract has now run unchanged except
for two small amendments for ten years.36 j
I
34 Chase, o£. cit., p. 164* Loc. cit.
36 Ibid.. pp. 164-165*
52
Major Estes attempted to control the discussion of
controversial material by undertaking the discussion only
when the group was in a serious and unemotional state.37
The procedure is effective, in that everybody must par
ticipate, and yet it is very difficult to steal the
show.^^
Peters understood that an air of informality is
conducive to good results in discussions.
An atmosphere of too much formality stilts
the parties and encourages them to keep
talking for the record long after there is
an evident necessity for them to begin moving
to close the gap between them.39
As a counter measure he suggested:
A successful technique is to begin most
sessions very favorably, taking copious
notes and, as the proceedings continue,
encouraging an increasing degree of in
formality in personal relationships and in
the tenor of the discussions.
In describing some of the purportedly successful
methods that mediators have used at the bargaining table,
Bullen referred to a privately circulated dissertation
entitled, "Research Notes on High Test Techniques for
Mediating Labor Disputes." Two approaches noted were the
37 Ibid-» P* 166* 38 Ibid.. p. 167.
^ Peters, op. cit., p. 109. Loc. cit.
53
"traumatasonic” and the "multiple confusion”
techniques.^
Traumatasonic technique. This approach was suc-
| cessful in the following situation:
i The mediator when confronted by disorder
and shouting, whistled with such a piercing
and physically painful sound that a state of
trauma was produced among the parties and the
way was cleared to successful mediation of
their differences.42
Multiple confusion technique. An example of this
i
technique was given by Bullen:
The mediator, in the process of putting
the issues in his own words, created such
an atmosphere of mutual perturbation, that
the parties found themselves well advised
to get together forthwith. . .43 :
This technique was found to be particularly effec
tive when the mediator began to expound his own ideas
concerning the more important social and economic impli
cations of the dispute.^
Chase substantiated the potency of this means of
settlement of disputes in another highly amusing narrative:
A certain union puts an elaborate case 1
with many charts and figures before a j
conciliator, taking hours to present it. i
41 Bullen, o£. cit., p. 113* Ibid.. p. 311*
^ Loc. cit. ^ Loc. cit.
54
the company also spends many hours with
more charts and tables proving the op
posite. The conciliator accepts all this
evidence with a psychiatrist1s composure.
When the last chart has been hung upon the
wall, he says, "Very impressive, gentlemen,
very impressive. Now let me sum up the
position of the parties to the dispute."
He then proceeds deliberately to make a
fearful hash of the case. The disputing
parties are appalled. They hastily re
treat to the corridor and agree in no time
at all, lest worse befall theml45
Audio visual technique. A workshop technique de-
1 veloped by the Federal Mediation and Conciliation Service
i
has been used with considerable success. This program
has been designed to highlight some of the mistakes made
j
by supervisors and shop stewards in the handling of
46
grievances
Presentation consists first of a showing
of slides with recorded script consuming from
five to eight minutes for each grievance
situation. This showing is intended to serve
merely as a basis and stimulant for discussion
which is led by one of the Service’s experienced
mediators. The essence and real value of the
program arises from a well directed discussion
period. . . .47
45chase, op. cit.. p. 162.
^ Federal Mediation and Conciliation Service,
Seventh Annual Report. Fiscal Year 1954 (Washington:
Government Printing Office, 19551, P* 1^.
47
Loc. cit.
Another method employed by the Service in their
1 preventive mediation activity is the establishment of
labor-management committees at various plants under the
initial leadership and guidance of a mediator. Many dif-
i ferences and misunderstandings have been resolved in this
One mediator illustrated the use of both techniques
in a situation which developed during contract negotia
tions.
During the negotiations, the mediator
suggested to the parties that a labor-
management committee be established in an
effort to create a better understanding of
each others problems and an improvised re
lationship between them. The suggestion
was accepted following settlement of the
existing dispute and the return to work of
striking employees. The mediator met with the
parties and assisted them in preliminary details
of committee organization. The mediator also
attended the first few committee meetings which
followed. Various pending matters were dis
cussed and resolved which in turn served to
eliminate a sizable portion of grievances that
had accumulated. At one of the conferences,
a portion of the Audio-Visual*Program was
presented. Many months later, upon a return
visit, the mediator was informed that through
committee activity a number of past difficul
ties had been overcome and a better understanding
was being developed. The parties are continuing
such meetings and appear to be achieving con
siderable success. . .
Ibid.. p. 19 49 Ibid.. pp. 19-20.
56
The success of the joint use of the audio-visual
i
i
j technique and the labor-management committee approach may
i
well provide a pattern for the interplay of several tech
niques for effective settlement of disputes.
The passive technique. In his recent analysis of
the mediation process through observation of mediators at
the bargaining table, Lovell found that:
The mediator gains the confidence of the
parties less by positive techniques than
by refraining from actions which might weaken
the bargaining position or the status o£nthe
parties and thus antagonize them. . . .'5U
51
Warren discovered that change in a partyfs posi
tion may be accomplished by merely sitting through many
hours of seemingly useless discussion and eventually
wearing the party down to a stage where he would modify
his original position.
Rumord persist that some mediators keep
windows closed and the heat turned on and
do not allow the negotiators to sleep or
50
Hugh G. Lovell, ”The Mediation Process,"(unpub- ;
lished Doctoral Dissertation, Massachusetts Institute of
Technology, Cambridge, 1951), p. 105.
51 1
Edgar L. Warren,- The Settlement of Labor-Manage-i
ment Disputes (Rio Piedras, P.R.: University of Puerto I
Rico Press, 1951),, p. 29. ;
57
eat, in order to obtain more receptive
moods. . . 52
Lovell reported from his observations that:
Most mediators keep notes of points
of agreement and disagreement, and thus
serve as secretary to the parties, but
except for this they tend to play a
relatively passive role in joint meetings
and do most of their work in separate
meetings.
It has been observed that the very presence of the
i
mediator at the bargaining table improves the behavior of
1 the parties.^ The passive role of the mediator, as
|
i enumerated by Peters, requires that: j
i
. . . he preside over meetings, keep the |
discussion going, see that it runs smoothly,
maintain order, only occasionally participate
in the discussions and then only when it
appears to be getting sidetracked. . .55
Peters illustrated the importance of the passive
role of the mediator by citing a case in which he par
ticipated as a mediator, involving a negotiation deadlock
of an association of employers and a militant local union.
"The presence of the conciliator," he emphasized, "gave
the parties a reason for moderating the discussion and
easing the atmosphere."
i
52 . 53
Loc. cit. Lovell, oj>. cit., p. S3. i
ci 55
Peters, o£. cit.. p. 208. Ibid., p. 207. ;
53
There had been no occasion or need
for the writer to make a single suggestion
during the entire negotiations. He sat
through it all, taking copious notes for
the record. When final agreement was
reached, everyone shook his hands warmly,
with profuse expressions of appreciation
for his "contribution" to the settlement.
He could not resist asking one of the
negotiators just what he thought was the
conciliator’s contribution. The man
laughed and said, "Well, just sitting here
and doing nothing gracefully put everybody
else in good humor and kept out all the
personality clashes."
The writer said,"No, I think I did a
good deal more than that. As a matter of
faet, I made a very solid contribution to
the negotiations. I had sense enough
to stay out of the way, and let you people
negotiate your own agreement without any
interference from me."56
The "note taking for the record" no suggestion technique
has been found to be effective in long and drawn-out
negotiations.
Obtaining a True Perspective
The parties through extension of their own situa
tion, as Jackson explained, generally enter the discus
sions with a highly inflated concept of the facts and
merits of their case.
Members of the War Labor Board in the
Second World War often greeted factual disputes
with the assertion that gentlemen cannot really
56 Ibid.. p. 209.
59
disagree about a fact, they can only
be ignorant of it. The mediator who is
impartially trying to find out what the
facts are and to reduce them to their
true proportions and relations instinctively
adopts a technique which tends to deflate
inflated misunderstandings or misrepresen
tations of the facts. There is an accompany
ing deflation of the inflated arguments pre
dicted on those misconceptions of the nature
or relevancy of the facts.
Of course, the mediator, at this stage
can destroy the confidence which he has
built up if in his treatment of the facts
he shows partiality or impatience or lack
of understanding. In the general run of
cases, if the parties are meeting together,
this step can be completed around the table,
but it is sometimes useful to suspend the
proceedings while prearranged and impartial
examination of a particular fact or group
of facts is undertaken.57
The main part in Jackson’s statement is that a
technique is instinctively adopted for deflating facts.
The problem: , however,is not to destroy the confidence he
has created, while attempting to get a true picture of the
dispute.
The real issue. One of the primary reasons for
factual deflation is the uncovering of the real issues.
This has been expressed by Peters in the following manner:
The first thing the conciliator must do
to integrate himself into the situation is
to go beneath the surface of the dispute
57 Jackson, op. cit.. p. 32.
and find the real issues. . . . These real
issues are seldom on the surface of the
i dispute. In a deadlock which is headed for
a trial of.strength, the disputed issues
are often no more than rallying points in
attempts to change some basic relationship
between the parties. . .53
Peters used a technique of tactful off-the-record
discussions in order to find the real issue in a case in-
!
| volving a culinary union and an association of hotel and
I '
I
! restaurant owners. The issue was hidden in the underlying |
59
relationship of the parties.
"The parties," according to Warren,"are frequently
looking at issues from entirely different angles."^
In some instances the negotiators them
selves do not realize, why particular matters
are so important to the people they are
representing. It is essential to get to the ;
heart of the matter even though this may in
volve an understanding of the motives^aot
present at the bargaining table. . .
Influencing Positions
One of the major objectives of the mediator in
arriving at a settlement of a dispute, Maggiolo believed,
53 Peters, 2£* cit-, p. 127.
59
Ibid., p. 130. (A more detailed discussion of
uncovering real issues illustrated by case studies is
found on pp. 123-146.)
60 5!
^ Warren, 0£. cit.. p. 22. Ibid.. p. 23.
Maggiolo. op. cit., p. 635.
61
| is the inculcation of a willingness to change a position
i
1 assumed by either party. By raising doubts in the minds
j of the parties about positions adopted, a departure from
control the discussion that it would be unlikely for
either party to take a position from which graceful re
treat would not be possible.
Warren expressed this function of the mediator in
the following words:
A major function of mediation is finding
a way for one or both disputants to "save
face." Union officials who have taken a
firm public position find it difficult to
make modifications no matter how persuasively
the negotiators indicate the necessity to
compromise. Similarly, management repre
sentatives often take a stand and feel that
withdrawal will be considered a sign of
weakness. This situation is normally inten
sified because each is eagerly waiting for
a sign of yielding by the other. Any such
demonstration results in a stiffening of
position on the other side of the table.
The consequence is often deadlock and the
function of mediation is to overcome it.
It is here that the confidence which labor
and management should have developed in the
mediator meets a severe test. If trust has
been established he should secure some indi
cation of the extent to which they will com
promise. Neither, of course, would express
these modified views to the other directly.
The mediator, knowing that the parties are
willing to make cone n direct
63 E. L, Warren and I. Bernstein^ "The Mediation
Process," The Southern Economic Journal.15:443.April.1949»
i previous positions is hastened. The mediator must so
negotiations toward
62
Various techniques are used to bring the parties
to a point where they recognize the limitations of their
extreme positions. Jackson cited two examples:
. . . (1)questioning one party about how he
meets certain strong points in the position
announced by the other party, (2) asking a party
to reanalyze arguments previously presented hut,.,
in the light of facts in their new proportion. D^
The breaking-off position. An interesting obser-
! vation was made by Peters regarding the acquisition of a
I
| compromise by the mediator:
i
He interprets and estimates the real
position of each side as it is gradually
unfolded to him, and conveys it to the other
side in a positive manner. The parties in
dicate to the counciliator, to a greater
extent than they would to each other, the
degree to which they are willing to compro
mise. Often he has to pull it out of them.
Through him they are able to explore the possi
bilities of a settlement without undermining
their bargaining positions.
Each side preserves a cushion to its break
ing off position, which it wants to feed out
gradually in exchange for the cushion in the
other side’s breaking off position. If one of
the parties strips itself of its bargaining
cushion too' soon, and finds itself at the
breaking off point at a time when the other
party still retains a substantial cushion, it
is a tremendous disadvantage. If one of the
parties concedes a point in an'effort to get
the other party to reciprocate, and the other
party does not respond in kind, then the party
^ Jackson, ojd. cit.. p. 33.
63
that has made the effort has only under
mined its bargaining position.
The conciliator must interpret the
offer to compromise, guess it as it were.
The concession is conveyed to the con
ciliator in such a manner that he is left
in some doubt. . . . This protects the
party which makes the offer, even from the
conciliator if the other party doesn’t
reciprocate.®?
A change in position and resulting compromise was
caused by a chance remark:
A union and a management were deadlocked on
a wage issue. The contract provided that at
any time during its term it could be opened on
wages by a 60-day notice from either party.
The management stood firm on an offer of 150-
The union had dropped to a real rockbottom of
100.' Twenty-four hours before a strike dead
line, in a private discussion, the chief nego
tiator on the management committee said to the
conciliator— -"Why don’t they take the nickel and
be satisfied for the time being? Who knows, in
60 more days the inflationary spiral might be
such that the union would be justified in coming
back and asking for another increase?" Further
exploration between the parties led to a settle
ment where union received 50 immediately, 2hi in
15 days, and 2|0 in thirty days thereafter.oo
Another highly successful technique for reducing
the area of disagreement was one in which the mediator
asked an industrial relations director and a business
agent which issues opposing parties would hold to most
tenaciously. The issues the business agent believed
^Peters, o£. cit.. pp.149-150. ^ Ibid.. p. 151
64
| management would be most adamant about were those that the
I union thought it might have to concede. The same situ-
!
| ation applied to the management side of this dispute. In
| this manner the mediator through pin-pointing the issues
j that were in doubt, was able to diminish the area of
■ conflict.^*7
Suggestion of Alternative Solutions.
A highly developed skill on the part of the medi-
' 6$
' ator, Jackson pointed out, is the ability to suggest
alternative solutions at a proper time, so as to make the
parties believe that the solutions are their very own.
• The objective to be attained has been referred to as a
' "habit of agreement.”
According to Maggiolo, the mediator knows that:
One of the requisites of the agreement-
making process is acceptance by the disputants
of the frequent necessity to forego the more
perfect, but unacceptable, idea in exchange
for the less perfect idea which is acceptable
and hence has greater force and validity in
creating agreement. Closely related to this
technique is that which seeks to establish
what has been so aptly termed as the consent
to lose attitude. Many times this attitude
is developed by a mediator’s skilful use of the
alternate-solution technique. This technique
67 Ibid.. p. 155.
68 ■ :
Jackson, o£. cit.. p. 34; Maggiolo.op. .cit. .p635.'
65
becomes all the more effective when the
mediator can so implant the alternate solu
tion in the minds of the parties, that it
will emerge as their solution rather than
his suggestion.°9
In some instances the primary role of the mediator
is that of offering alternate courses of action. Alter
nate solutions are generally effective when economic,
political or social pressure is applied to the disputants.j
i
One case study, known as the Crowell case, reportedj
I
by an expert observer, corroborated this concept:
The mediator contributed to the Crowell
Case mainly by making it possible for the
parties to reconsider the available alter
natives. His arguments caused the company
to modify its position in some respects, and
undoubtedly influences the union’s decisions,
particularly those decisions that were made
in joint meetings. Unfortunately, neither
party was willing to modify its position
sufficiently to prevent a strike. . . .
However, there was little that the mediator
could have done to prevent this. He could
and did suggest alternatives, and he could
and did argue that the company showed no sign
of making a substantial last-minute c o n c e s s i o n . 70
Areas of reasonable expectation. The alternative
71
solutions of the mediator, Lovell pointed out, are based
upon the point of intervention of the reasonable expecta
tion of the parties.
^ Jackson, loc. cit. ^ Lovell, op. cit., p. 63*
71
Jackson, loc. cit.
66
Jackson suggested that it is best to deal with the
parties in separate rooms when making other suggestions
for settlement of the dispute, since this gives the
mediator an opportunity to get each party to embrace the
alternative solution as its own. He advised, "It is ex
tremely desirable not to spring an alternative solution
j
upon the parties without advance warning so that they |
72 ■
will not react adversely mainly because of its newness. !
i
In facilitating the comprehension of the limita- j
!
tions within which the parties must work, Jackson proposed|
the use by the mediator of "organizational or institu
tional terminology known to be familair to the party having
the greatest difficulty in understanding the other’s point j
73
of view."
The gimmick. The gimmick is a term used in collec- ;
tive bargaining which refers to a form of settlement.
"The gimmick is often the crucial factor in bridging the
gap between the parties," Peters noted. He also observed
!
that "a competent conciliator must be practical at devis- i
ing gimmicks, or in getting the parties to devise their
o w n . " ^ (
Loe. cit. ^ Ibid.. p. 35.
74
Peters, op. cit.. p. 201.
67
Ching’s description of the following cases is an
example, in effect, of the parties devising their own
gimmick based upon a suggestion of the mediator’s:
Absenteeism was a cause of major irritation.
A mediator noted that employees who could not
get to work invariably failed to let the man
agement know. The result was undermanned crews
and many operating difficulties. After discus
sing the problem together, at the mediator’s
suggestion, it was agreed the company should
have a night telephone operator to whom the j
employees could report if they would not be at I
work the next day. This gave the foremen time j
to obtain replacements. The union committee j
followed up with the membership and actually j
obtained a reduction of absenteeism. Both
union and company reported to our mediator on
a change in attitude shown by the other party, |
and the growing confidence each has in the !
other. . . 75 j
Joint Meetings;vs. Separate Meetings
When to conduct separate sessions rather than joint ,
meetings is a problem of paramount importance and may well
determine the success or failure of the mediatory effort.
The majority of practitioners believes that the mediator
is most effective and takes a more active role in the ;
76 1
separate meetings.
In discussing the role of the mediator in joint
sessions Lovell emphasized the guidance function:
7 5 Ching. o j d . cit.. p. 8 7 •
7^ Peters, o|>. cit.. p. 195; Lovell, o£. cit.,p. 86;
Warren,"Settlement of Labor-Management Disputes.op.cit..p.29.
68
While in joint meetings the mediator may
try to guide the discussion, perhaps to get
the parties to discuss simpler issues first,
or to keep them on the subject. Such direc
tion of the proceedings is subtle and rel
atively rare, however, perhaps because the
mediator cannot make positive statements in
front of both parties without running the
risk of antagonizing one of them or because
he feels that it is better for them to work
out their own solutions whenever possible.
Most mediators keep notes of points of
agreement and disagreement, and thus serve
as secretary to the parties, but except for
this they tend to play a relatively passive
role in joint meetings' and7do most of their
work in separate meetings.'1'
Warren concurred with Lovell*s observations:
Actually, very little of the process of
conciliation or mediation is carried on in
joint session. Normally the parties will be
separated, and then will begin the days and.
nights of talking separately to each side.'8
When joint sessions are more feasible. While con
ceding that the "conciliator plays his most active role
in the separate sessions with the parties," and . . . "it
is here that he can express his opinions most freely and
exert his persuasive powers to the utmost," Peters ad
vanced the idea "that in certain situations it is more
feasible for the conciliator to take positions across the
77
Lovell, op. cit., p. 83.
78
Warren, loc. cit.
j 69
79
j open table."
I This often occurs when a stalemate has been reached
and a compromise is sought. A compromise proposal offered
by the mediator is frequently agreed to in joint session,
I
! because the parties are face to face and exert direct
j pressure upon each other. In separate discussions the
I compromise might not carry for there would be a tendency
to pressure the conciliator rather than each other.
| Other situations where open table discussions
t
j foster better results are:
(1) When it becomes apparent that one party
or the other is willing to concede a disputed
j point, but wants to be persuaded.
1 (2) If a proposal under consideration by one
of the parties is close to what is acceptable,
it will not be resentful of persuasion by
the conciliator in open session.
(3) Frequently the conciliator is given a
wide latitude in making compromise proposals
in open session to clear away minor issues,
after the basic issue has been resolved, and
the strike threat with its tensions has been
removed.°0
When should separate sessions occur. Lovell’s ob
servations of mediators in action led to the following
conclusions pertaining to the reasons for separate con
ferences. Such meetings are called by the mediator:
79 An
Peters, 0£. cit., p. 195- Ibid., pp. 195-96.
70
i . . .(1) when various points of view
l have been explored as much as possible,
! (2) when one side shows signs of breaking
j and might tell the mediator something, and
(3) when the parties are getting dangerously
angry. . .
Lovell found that both the parties and the mediator
i
I could express themselves more freely in the separate
meetings, which are conducive to free and full discussions.j
i
Tensions and hostilities which arise in joint meetings are
!
! lessened by this greater freedom. Lovell cited the Erbach
! Case as one in which the mediators used separate confer-
I
dp
ences to give expression to outbursts of temper.
Separate sessions allow the disputants to ponder
| and clarify their positions with the aid of the mediator.
i
However, the normal communication process may be dis
rupted and time wasted: !
Where complicated issues are being dis
cussed, it may take some time for the
company to explain its position to the
mediator. The mediator then has to re
explain the companyfs viewpoint to the
union. It is quite possible for the ■
mediator or either of the parties to ;
get lost in this process, with the re- '
suit that misunderstandings arise. . .
On simple issues. . . this difficulty
is less likely, provided the mediator is
alert, and often the mediator is able to i
* i
8X
Lovell, op. cit.. p. S3.
S2
Ibid.. p. S4. (For a detailed analysis of this
case, see pp. 41-5$.)
71
prevent misunderstandings from developing
by referring to his notes or by making go
short visits to.the opposite party. . .
Peters advised regarding the separate sessions:
There is nothing wrong in the separate
sessions if the conciliator talks like an
assistant business agent to the union and
like an employer-consultant to the manage
ment. So long as the parties recognize
that he is a middleman, they will repose
in him the confidence that is required for
him to be integrated into the situation
to reflect their own real interest; and
they will withhold from him whatever needs
to be withheld to protect themselves from
the fact that he also speaks for the other
side.°A-
III. OTHER MEANS OF MEDIATION
Non-conference methods of mediation may play a
vital part in the resolution of disputes. These "behind
the scenes" techniques, enumerated by Ching, may be tele
phone conversations by the mediator with representatives
or associates, friends or other business interests of the
disputants.
The mediator may be forced to make
public his recommendations for further
procedures (arbitration or fact-finding)
in order that public opinion may perform
its function in deterring disputants,
absorbed and intensely preoccupied with
gji
Ibid., pp. 85-36. Peters, o£. cit., p. 253.
72
their own affairs, from inflicting damage
upon the public interest and welfare.®5
Lovell argued that conference work can only have
limited success, inasmuch as basic changes in company or
union policy may depend on persons or groups not at the
bargaining table, and thus would require direct contact
with these persons. The mediator may be required to
speak at a union membership meeting, or to talk to a
company*s creditors.^
Two cases of "behind the scenes" mediation were
observed by Lovell:
One mediator followed a relatively
unsuccessful conference with a talk with a
company treasurer, who presumably had more 1
authority than the negotiator; the other
persuaded a high union official to enter
the situation. Both of these mediators
were very familiar with the parties and
with the problems underlying the dispute. '
Non-conference mediation "involves direct effort to
increase the pressure on negotiators, or to secure organ
izational decisions which make compromise more likely.
Peters observed that the mediator may bring in
new faces, such as a top representative in the
85 Cyrus S. Ching, "Some Instruments of Industrial
Peace," Annals of the American Academy of Political and
Social Science. 274:181, March, 1951.
86
Lovell, o j d . cit., p. 107.
87 £8
Ibid.. p. 108. Loc. cit.
73
j international union, or a top policy maker in a company,
I if they feel that he is attempting to supplement their
: 89
efforts and not trying to by-pass them.
Semi-permanent vs. ad hoc Mediators
; Non-conference means of dispute settlement are more
likely to be used by semi-permanent rather than ad hoc
90
mediators. To illustrate his point Lovell discussed a
j case in which three alternative courses of action entail-
i
j ing behind the scenes mediation were abandoned because the
mediator did not know the parties well, despite the fact
he was relatively familiar with the situation. The possi
bilities were a statement to the press about the position
of one of the parties; a statement from the Director of
F. M. G. S. urging the parties to continue negotiation;
and direct contact with higher company officials.
Recent literature on mediation abounds with effec
tive arguments concerning the relative merits of permanent
or semi-permanent, as distinguished from temporary medi
ators referred to as ad hoc mediators.
The views of Wallen and Warren adequately reflect
the differences of opinion. Wallen held that mediators
Peters, op. cit.., p. 217.
90
Lovell, loc. cit.
74
should be specialists intimately acquainted with the per
sonalities and economic problems in a specific industry
or company and the unions functioning in these industries
or companies. This can best be accomplished by asso
ciation with the industry or union for a long period of
i
j time.
Mediators should be more than message
carriers. While industrial peace is
primarily the responsibility of labor and
management, the techniques of inducing
| agreement have hardly begun to be exploited,
j ' An important one is the use of that feeling
; of respect which is engendered by one who is
! knowledgeable in the field involved and
whose good will is established. . .
On the other hand, Warren seated:
Persons with special knowledge may act
more effectively than mediators from the
regular staffs of Federal or State agencies,
however, in most disputes regular staff media
tors do everything desirable or necessary to
assist the parties to reach agreement.
A highly selected group of ad hoc mediators,
who, because of their particular learning,
experience or prestige may effectively offer
positive proposals for the settlement of cer
tain disputes, should be available for assign
ment to important cases.
91
Wallen, o£. cit.. p. 2$7. t
92 |
Edgar L. Warren, "Discussion on Mediation," The '
Industrial Relations Research Association (Publication 12;'
Madison, Wisconsin; Industrial Relations Research Asso
ciation, 1954), pp. 2S9-290. !
75
i IV. SUMMARY
i
i
■ t When Should Mediation Occur
* ' ■ ■ ' " ' — — ■1 ...........
A vital part of the mediator*s technique which may
well determine the success or failure of his efforts is
1
i the timing of his entrance into the dispute. Adherents
I ;
of the concept of intervention during the early stage of j
the conflict believe that the mediator is thus able to
acquire a better acquaintance with issues and personali-
i
; ties rendering him more effective in dealing with impasse
j
; situations. Most practitioners and students of mediation
I . . . i
| hold the view that premature entrance of the mediator
J could be harmful. They contend collective bargaining
: efforts should be exhausted prior to the mediator*s inter
vention. The rationale behind this opinion is that the
fundamental force that moves the disputants toward agree
ment is the pressure each exerts upon the other The j
parties relax this pressure when the mediator enters the
situation prematurely. j
Accordingly, this group advocates intervention im- ,
mediately prior or after deadlock. Government mediators
t
have chosen this period because further delay could result j
in a strike and early entrance might interfere with direct
: negotiations. It is assumed that the parties would be
76
most susceptible during this time.
Impartial umpires are looked upon by some as being
I the most effective method for resolving disputes. The
reason cited is that the umpire becomes familiar with the
industry and the negotiators over a great period of time,
enabling him, therefore, better to cope with conflict
situations. A contrary view, which appears to be unsub
stantiated, argues that the impartial umpire enters a
case prematurely.
■ i
Conferences
The mediator makes his most significant contribu-
i
| tion in conferences. Here he uses all the techniques and
skills at his command. He enters at the request of one !
or both parties and must establish his impartial approach
in either case.
Preliminary conferences may be necessary in order
that the emotions of the parties may be sufficiently
cooled down, so that the parties can be brought together.
i
One allegedly successful technique is a discussion of
I
less contorversial items, such as procedure, for the con-
I
duct of the mediation. Preliminary conferences also serve ,
as a means of becoming better acquainted withthe parties
and acquiring a background of the dispute. Essential
77
parts of the mediators technique are: (1) when to con
duct joint or separate sessions; and (2) when to let the
parties give vent to their emotions or to calm them down.
There is no clear agreement as to the time and
place for bargaining sessions. Certain quarters are of
the opinion that the meeting place should be determined
by the disputants, others hold that the conciliation
i
service headquarters provides the best atmosphere.
Various techniques have been presented covering
the mediatorTs activities in getting the parties together:
eliciting full expressions of positions of the parties;
cooling emotions and passions; deflating arguments so as
to obtain a true perspective and discovering the real
issue; influencing positions; suggesting alternate solu
tions and aiding in the form of settlement. i
The mediator is most effective in separate sessions,
as he is able to take a more active role. He tries to
guide the discussions in joint meetings. This passive
role is assumed because positive statements made by him
may antagonize either party. The mediator strives to
effectuate a solution formulated by the disputants.
The parties and the mediator can express themselves
more freely in separate sessions. Hostilities and ten
sions which arise in joint meetings are lessened in
! 78
separate meetings.
|
A disadvantage ascribed to separate sessions by
i
i
some writers is the possibility of the disruption of nor
mal communications and the waste of time where complicated
issues are involved. It may take some time for one party
to explain its position to the mediator who, in turn, must
re-explain it to the opposite party. Misunderstandings
may arise through this procedure.
i Other Means Of Mediation
Non-conference porcedures have been of tremendous
importance in resolving disputes. Behind the scenes
techniques, such as conversations with higher-ups in the
company or union echelon; friends or associates of the
parties; or speeches at union membership meetings; or
: talks with company creditors have been effective. Public
recommendations have also created pressures for solution .
Non-conference mediation is a direct method for in
creasing pressure on negotiators for compromise and the
resolution of a dispute.
Non-conference techniques are more likely to be
used by semi-permanent rather than ad hoc mediators, as
the former are generally more familiar with the situation
and the parties.
79
A difference of opinion exists as to the relative
i effectiveness of permanent or semi-permanent mediators as
against ad hoc mediators. In some quarters the view is
set forth that mediators should be specialists, intimately
i acquainted with the problems and personalities of a
1
j specific industry, or union. This knowledge is usually
| acquired through long association with an industry or
r
union. Others feel that selected ad hoc mediators with
i
| particular training, experience and prestige can do
i
: everything desirable or necessary to secure agreement.
1
_1
CHAPTER IV
THE MEDIATOR’S TOOLS
i The mediator’s tools are the factors which he
■ brings to bear upon the industrial dispute for its success-
i ‘ 1
! ful solution. Among these tools are the personality and
skills of the mediator, the factual information bearing
on the dispute and the pressure factor. The success or
!
■ failure of the settlement of a labor conflict will depend
upon how effectively the mediator applies them as part |
!
of his technique. |
I. PERSONAL CHARACTERISTICS OF THE MEDIATOR ;
A survey of the literature reveals some data about
the relationship of backgrounds, interests, experience
and abilities of mediators and the successful performance
of their mission. Not much is known about whether a
mediator can be characterized by a common personality j
pattern or about the method by which he is selected.
An investigation was made by Irving Weschler,^"
Research Assistant at the University of California
^ Irving R. Weschler, "The Personal Factor in Labor
Mediation," Personnel Psychology. 3:113, summer, 1950.
Industrial Relations Research Institute, in which he at-
!
J tempted to find criteria of performance or evaluation by
i
which good and poor mediators could be distinguished.
This study will be reviewed in detail in another portion
| of the chapter.
Mediation Skills
Mediation techniques are implemented by the char
acteristics, qualifications, and skills of the mediator,
i Bullen emphasized this idea in the following passage:
. . . . And so today the mediator to be of
i real aid to the parties in many difficult
situations and to gain their respect and
confidence, should be well educated and
| experienced.
He must seek methods of dealing with
a host of technical economic, legal, and
personal relations problems. His approach
must be impartial and constructive and
create a desire on the part of- labor and
management to explore with him reasonable
solutions to problems which vex them both.2
According to Cole’s report on industrial relations,
The effectiveness of the mediator depends
mainly on the confidence he can inspire and
on certain indefinable qualities he possesses.
Among these are his ability intuitively to
know what will arouse a favorable response and
to know when to make his moves. He must be
2
Frederick H. Bullen, "The Mediation Process,”
Proceedings of New York University1s First Annual Confer
ence on Labor (New York: Mathew Bender and Company, 194$),
p. 114.
S2
able to anticipate unfavorable reactions
j and to help temper them so as not to
divide the parties further in their search
for an area of agreement.3
Warren^4 - found that (different procedures require
j varying types of personnel. A good conciliator may be a
| satisfactory mediator; an effective mediator may not be
1
proficient at fact-finding; and an excellent administrator
of a mediation agency may lack the qualities needed for
: solution of a dispute.
I
j It was Warren*s belief that a mediator must have
I certain qualities in addition to those of the conciliator.
He noted that it was significant that analytical ability
and expertness in labor management relations— factors
' which distinguish the mediator from the conciliator— were '
omitted in the following statement.
Father Breen describes the qualifications
of a conciliator as impartiality, patience,
coolness, resourcefulness, practical psych
ology, skill in the use of languages and the
ability to inspire confidence.?
3 David L. Cole, "The Significance and Function of
Mediation."Proceedings of the Sixth Annual Conference on
Industrial Relations (Buffalo: The University of Buffalo,
1954), p . 9.
4 Edgar Warren and Irving Bernstein;"The Mediation ,
Process," Southern Economic Journal.15:451. April, 1949. j
5
Ibid., citing Vincent I. Breen, The United States;
Conciliation Service, pp. 139-150.
S3
f i
According to Warren,° the mediator should have the
conciliator’s capabilities plus the intellectual attribu
tes to diagnose trouble and prescribe remedies. The
mediator must also have imagination and initiative for the
7
formulation of successful compromise solutions.
A vast amount of diversified knowledge, an under
standing of human relations, and impartiality are charac
teristics which Cyrus Ching attributed to a successful
mediator.
A successful mediator must have a
thorough understanding of human relations.
He must view mediation as a philosophy and
work at it with that in mind. He must have
a good personality and unlimited patience.
He must be a diplomat and a person able to
view all sides of a question with complete
objectivity.
9
Peters listed experience, objectivity and impar
tiality as the three prerequisites that a competent con
ciliator must have. To be effective, however, a concil
iator must also be tactful, articulate and able to inspire
6 Loc. cit.
7 Edgar Warren, ‘The Settlement of Labor Management 1
Disputes (Rio Piedras, P.R.: University of Puerto Rico
Press, 1951), PP- 21-22. 1
Cyrus Ching, Review and Reflection (New York: I
B. C. Forbes and Sons Publishing Company, 1953), p. 71.
Q
Edward Peters, Conciliation in Action (New London:
National Foremans Institute, 1952), p. 251.
S l \ .
confidence.
In his book, Jackson^ enumerated several criteria
for a good mediator. Among these were knowledge of the
l
industry, ability to analyze factual and human data,
patience, a fertile and imaginative mind,and the ability
to sell alternative solutions.
Impartiality, knowledge and experience appear to be
the attributes most frequently referred to by mediators
!
; and students of the mediation process as most essential
: for successful mediation. They are examined in greater j
detail later in conjunction with other qualifications.
A summary of a study made by the Institute of Industrial j
| Relations of the University of California entitled, f , Job !
and Personality Trait Preferences of Mediators,” has also :
been presented.
Impartiality. The personal qualification of im
partiality has received more emphasis than any other trait
a mediator should possess. He must not be influenced by
i
his own biases, prejudices or emotions in striving for a
settlement of the issue. The mediatorfs function is to
assist the parties in evaluating and establishing their j
10
From a memo prepared by William Simkin, cited
by Elmore Jackson, Meeting of Minds (New York: McGraw-
Hill Book Company, Inc., 1952), pp. 25-26.
35
| own objectives.
| Peters contended that impartiality is not a mental
j
or emotional state, but a matter of deed, when he wrote:
. . . if he manipulates his function in an
attempt to impose his judgments upon one or
both of them, he cannot retain his impar
tiality. From the moment he begins to work
with his own judgment of what is the best
solution to the dispute, instead of assisting - j
the parties to balance their own divergent goals,
his bias will assert itself. ■ * -
12
Peters believes that a mediator cannot be effec-
i
j tive unless he is impartial. Warren, on the other hand,
took issue with the contention that it is possible for a j
conciliator or mediator to be strictly impartial. He
stated:
|
: Since we do not live in a social vacuum,
mediators like other persons, do not perform
their activities without "bias.” If the
person without bias did exist, he would be
an extremely colorless individual and there
fore a poor mediator. . .
It was the opinion of Warren that in some situa
tions a person with a definite partisan background might
be more effective than an individual with fewer prejudices.;
He illustrated this with the argument that where it is j
necessary to impress an employer with the necessity for
11 ' 12
Peters, o£. cit.. p. 253. Ibid.. p. 255.
13 Warren, The Settlement of Labor Management Pis
putes. op. cit., p. 26.
36
granting a wage increase, a mediator with an employer’s
point of view could be most effective; and where it is
i
necessary to impress labor that their demands could not
be met, then a mediator with a labor background might be
extremely effective.
|
Warren,however, did not point out who is to
determine what is necessary. He agreed with Peters and
others, nonetheless, that a mediator must have complete
| integrity and be able to secure the confidence of both
I sides. He also noted that when the parties to a dispute
!
want a mediator who is impartial, they mean impartially
on their side, rather than someone who is strictly
partial.
Ching held that a man’s background is not neces
sarily indicative that he is biased. This was clearly
stated in the following paragraph:
The fact that a man’s background is
service with either unions or management doesn’t
mean the man is biased, particularly when he
is employed by the government. If it did this
country would be in a bad way insofar as the
courts are concerned and every other branch of
public service. It all depends on the man.
Actually, a Federal mediator would have every
thing to lose and very little to gain from
being biased in a case. Once his bias was
14 Ibid.. p. 27.
j established, his usefulness would be at
j an end and his career ruined.15
j
: From the above analysis of impartiality mediators
seem to agree, with some qualifications, as to its im
portance for effective mediation. It is also generally
I accepted that the confidence of the parties must be se-
!
cured by the mediator.
Knowledge and experience. A background in collec-
| tive bargaining is frequently stressed as of paramount
i
j importance for a successful mediator. An understanding
of labor problems is one of the prime requisites.
The need for experience in collective bargaining,
especially on the negotiations level, was emphasized by
Peters:
It is desirable but not essential that
he have acquired the experience as an active
partisan representing one side or the other.
He should have enough experience to under
stand the dynamic forces at work in each
concrete dispute. Thus he can go beneath
the surface of the most complex situation,
and come to grips with the underlying re
lationships of the parties. He must be
able to evaluate the relative strength of
the parties and understand what are their
tactical and strategic goals. He must
especially understand the dynamics of trade
union functioning.-*-®
15 Ching, oj3. cit.. p. 71.
16 Peters, op. cit., p. 251.
as
Warren noted that a successful mediator should
i
l
! ”have a broad understanding of labor management relations
17 IS
problems.” Simkin agreed that experience and ability
in quickly analyzing human and factual data are prime
requisites for a successful mediator.
Ching added these qualifications:
He must have a sound knowledge and
understanding of complex labor laws such
as the Taft-Hartley Act, so that he knows
; at all times that he is working within
I our statutes.
The mediator, by applying a broad
knowledge of labor management relations,
a vast experience in the negotiations
process and deft skill in nurturing the
will to settle, serves as a catalyst,
which accelerates agreement. 9
Other qualifications. Traits of character and var
ied abilities have been associated with mediators as
necessary skills apart from those discussed above. In
addition Peters stressed the need for a high degree of
objectivity:
He must have enough imagination and
insight to put himself in the position of
the negotiators on each side of the table
and decide what he as a partisan would
17
Warren, op. cit., p. 2S.
1$
Simkin, op. cit.. p. 26.
19 Ching, op. cit., pp. 71-72.
39
and could do to arrive at a peaceful
resolution of the disputed issues in the
light of their tactical and strategic goals.
21- ,
Peters also cited ability to inspire confidence, articu
lation and tactfulness as other minimum prerequisites.
22
i Ching believes a mediator should have an under
standing of human relations; he must have unlimited
patience; he must be a diplomat; and he must be objective.
Warren^ added persistence, initiative, and imagination
to the necessary traits of a successful mediator.
Institute of Industrial Relations. University of
California study. The purpose of this study was to de-
i termine what personality variables were characteristic of
i
■ good mediators, which could be used for the selection of
new mediators. Questionnaires were sent out to 232 active
labor mediators of which 146 responded. They were asked
to check a series of variables with ratings based upon
the four choices of ’ ’very important,” "important," "of
doubtful importance," and "not important." The results of
the survey were as follows:
The "ideal mediator" appears as a
married man, between the ages of 35 and
65, who is in sufficiently good health
Peters, op. cit.. p. 252. Ibid.. p. 251.
22
Ching, 0£. cit.. p. 71.
to be able to "outsit the parties” and is
strong enough to "survive in this rough
game.” His religion is irrelevant, even
though somebody thought that "belief provides
personal integrity." On the other hand,
citizenship might be important, especially
in the South, where foreigners are sometimes
objected to. He does not have to be "American
born,” but should be able to function accord
ing to the customs of this country. His
political beliefs are at his own discretion
but "avowed communists" have no business in
this field.
A review of the "ideal mediatorts" edu
cation, experience, and interests points to
the rather interesting fact that a formal
education is not considered a prerequisite
for successful mediation. Most of the re
plies stress the importance of a good command
of the language and the ability to comprehend
the intricacies of collective bargaining.
A definite knowledge of labor law is not re
quired, but an appreciation of labor problems
and the mechanics of collective bargaining
is essential. The ideal mediator should be
socially-minded and his interest in sports
and other activities may give a hint as to the
"broadness of his personality."
Among the traits of the "model" mediator
which consistently received the highest ratings
were some of the intangible variables, such as
persuasiveness, a cooperative attitude, and
impartiality. His intelligence "must be at
least equal to that of the other two parties"
or "preferably greater." His appearance should
be "neat and business-like," and his sense .of
fairness and impartiality are of paramount
importance. A vivid imagination, high personal
integrity, patience, and persistence "in the
face of frustration" are some of the other
essentials.
24 Irving Weschler, "Who Should be a Labor Media
tor?" Personnel. 26:227, November, 1949*
91
It is surprising to note that formal education is not
needed for successful mediation.
25
In commenting on the results of this study,Warren
indicated that he believed knowledge of labor management
problems and intelligence might be of greater importance
than as reported in the study.
II. THE PRESSURE FACTOR
The mediation process has been termed a pressure
26
method by Warren. The term pressure is used by media
tors to include all factors which tend to make either or
both parties reconsider their positions.
Lovell defined pressure in this manner:
. . . Anything which lessens one’s relative
bargaining power and makes one less likely
to take a determined stand increases the
pressure. .. .
The factors which the mediator uses to increase or to de
crease the level of pressure are his tools.
Warren, op. cit.. p. 26.
9f>
^ Edgar L. Warren, "Mediation and Fact-Finding,”
Industrial Conflict,(ed.)Arthur Kornhouser. efc. al.{ New
York: McGraw-Hill Book Company, Inc., 1954J, P« 2^2.
^ Hugh G. Lovell, "The Pressure Level in Media
tion," Industrial and Labor Relations Review. 6:22,
October, 1952.
92
Warren cogently summarized the mediatorfs use of
pressure in the following paragraph:
Mediation is a method of persuasion
using pressures some of which are intrinsic
in labor disputes and some of which are
created by the mediator. In any instance
there is apt to be a multiple interaction
of different pressures some of which are
working in opposite directions. All these
may be classified in the following forms:
personal, social, political, and economic.
It is the function of mediation to exert,
channel, and control these pressures in
their different forms.28
Real and False Pressures
Peters distinguished between real and false pres
sures:
What is meant by false pressures?
Especially in the early stages of his par
ticipation, both parties try to use the
conciliator as a sounding board for their
bargaining positions. . . the doubtful area
was between 60 and 100. The union asserted
a rock bottom position to the conciliator
first of 150 and then 130. The management
tried to convince him that its top offer was
40 and then 60. Each party assumed that if
the conciliator could be convinced that this
was its real break-off position, he would
exert pressure on the other party for a
settlement at that figure. Even if the con
ciliator was not. successful in such an attempt,
he might convince the other side of the genuine
ness of a false breaking-off point and enhance
the chances of a favorable settlement near
that figure.29
2$ Warren, loc. cit. ^ Peters, o£. cit♦. pp.115-16
! 93
Mediators who convey false pressures lose influ-
! ence with the parties. The mediator uses pressure to
i
make the disputants change their well-established policies
and shift from firm positions.
The Strike Problem
The possibility of a strike or lockout keeps the
parties negotiating. Davis, cited in a recent book by
Warren, noted:
! It is in the last analysis, the pressure
| of this right to strike or lockout that keeps
1 the parties at the conference table: that
tests their courage, resourcefulness and
decision.30
The strike deadline as a tool♦ The strike deadline
increases thespressure bheboth sides. Warren and Bernstein
illustrated this idea in the following paragraph:
An all important factor is that agreement
is possible up until a specific hour on a
particular date, the deadline. No matter how
adamant the employer or union may be, it can
usually be assumed that each wants to avoid
a work stoppage. The strike date thus becomes
a working tool for the mediator in seeking a
basis for agreement. The parties necessarily
feel the hydraulic pressure and are normally
more willing to make concessions. The mediator,
of course, exploits the deadline, for example,
in timing recommendations that earlier may have
been unpalatable
30 Warren, op. cit., p. 17.
31
Warren and Bernstein, op. cit., p. 445.
94
; The mediator’s skill in determining how much pres-
|
I sure to apply, in using the strike deadline as a tool for
i
settlement of the issues, will determine the success or
failure of his efforts. Lovell found:
If there is not enough pressure in the
situation, neither side will think it
| worth while to compromise. On the other
i hand, too much pressure may persuade the j
parties that a strike is inevitable and
thus inflexibility or, even worse, emotional
crisis which results in unnecessary or
accidental strike action. .
I Sometimes when the deadline is almost reached the
I
mediator will attempt to get an extension of the deadline.
Peters claimed that the "proposal for a postponement of
the contest" should be made after all efforts of concil-
: iation have been made and negotiations have reached their
l
peak, otherwise the showdown will be delayed. His ex- >
planation was:
After the parties have made their maximum
efforts to bridge the gap between them, the
additional time which is wrung from them by
the conciliator brings the negotiations to
a new stage. Both sides now know each
other’s final position, and have another |
chance to work out an agreement, with the
time extension acting as a new pressure
factor.
An extension of a strike deadline which is !
agreed to before the situation has reached !
the breaking point has no such effect on the
32 Lovell, loc. cit.
95
j negotiations. The old deadline loses its
j significance and plays no part in bringing
| the situation to a head. The parties wait
until the eve of the new deadline before
making their maximum efforts toward an
agreement. The conciliator, as a rule,
does not try to get an extension of the
strike date until its psychological possi
bilities for pressure on both parties have
been exhausted. Otherwise, all he will have
accomplished is a brief postponement of the
showdown, without having added any new
pressure for an agreement in the situation.-^
According to Lovell,^4 the level of pressure in a
situation depends upon the likelihood of a strike and on
i
! the ability of the disputants to hold out for their
objectives if one is called.
j Inter-industry propensity to strike. An interest- j
i 35 {
ing and enlightening study made by Kerr and Siegel :
recently may have significance with regard to some pres
sure tactics used by mediators. The purpose of the in
vestigation was to determine if there were certain
industries in democratic industrialized nations that were
consistently strike prone, while others were consistently
33 34
Peters, o£. cit., p. 226. Lovell, loc. cit.
35
Clark Kerr and Abraham Siegel, "The Inter- - I
industry Propensity-to Strike— an International Study," i
Industrial Conflict, ed. Arthur Kornhouser.-et al. (New
York: McGraw-Hill Book Company, Inc., 1954;, pp. 1S9-212. ■
96
strike free. What was their propensity to strike? If
there was an affirmative answer, how could this be
explained?
Industries in eleven countries were studied, namely,
[
j Australia, Czechoslovakia, Germany, Italy, the Netherlands,
New Zealand, Norway, Sweden, Switzerland, the United King
dom, and the United States. Man-days lost as a result of
strikes and lockouts were used as a measure of.the pro-
j pensity to strike.
f Kerr and Siegel found that the propensity to strike
! !
t
for mining, maritime, and longshore industries is high;
for lumber and textile industries, medium high; chemical,
printing, leather, manufacturing (general), construction,
food, and kindred products industries, medium; clothing,
gas, water and electricity, and services (hotel, restaur
ants, etc.), medium low; and railroad, agriculture and
trade, low.
Two factors were cited for the ranking of indus
tries by the propensity of workers to strike: the location|
of the workers in society and the character of the jobs
and the workers, both related to the industrial environ- j
ment. '
The miners, the sailors, the long
shoremen, the loggers, and to a much lesser
extent, the textile workers form isolated
97
masses, almost a "race apart." They live
in their own separate communities: the
coal patch, the ship, the waterfront
district, the logging camp, the textile
town. . . There are few neutrals in them
to mediate the conflicts and dilute the
mass.3°
!
j As a result:
j
i . . . The strike for the isolated mass is
a kind of a colonial revolt against far
removed authority, an outlet for accumulated
tensions, and a substitute for occupational
and social mobility.37
! Where the individual or group is integrated "indi-
i
I vidual grievances are less likely to coalesce into a mass j
‘ !
1
grievance which is expressed at the job level." j
The influence of the character of the job and the
worker on strike proneness is explained in this manner:
If the job is physically difficult and
unpleasant; unskilled or semi-skilled, and
casual or seasonal, and fosters an independent
spirit. . . it will draw tough, inconstant,
combative, and virile workers, and they will
be inclined to strike. If the job is physically
easy and performed in pleasant surroundings,
skilled and responsible, steady; and subject to
set rules and close supervision, it will attract
women or the more submissive type of man who
will abhor strikes. . . 39
The authors have deliberately presented two extremes in
their cases to clarify their explanations. ;
36 Ibid.. p. 191. 37 Ibid.. p. 193.
38 Ibid.. pp. 193-94. 39 Ibid.. p. 195.
| 96
| Other explanations or theories indicated by the
i
i
I investigators which can be applied to the ranking of in
dustries by propensities to strike and which may explain
the findings are: the economic environment, the political
environment, human relations, the trend of historical
developments, dominant personalities, adherence to ideo
logical views, selection of good bargaining techniques
and key bargains (bargains which set the pace for
j followers).
I
| Of what significance is this study to the media-
s
j tor? A major portion of the mediatorfs job is fore-
j casting, that is, predicting what the terms of the settle
t raent will be, and this study could help in that process.
Warren^ found that the mediator*s most important
tool is information to help him in predicting settlement
terms and in his selection of where and how to exert
pressures to bring about a settlement.
Information of the type presented by Kerr and
Siegel could be of tremendous aid to the mediator in his
determination of the kind and degree of pressure to use
, for terminating disputes.
Warren, Settlement of Labor-Management Disputes.
op. cit.. p. 26.
1
99
The timing of the settlements. As the deadline
for a strike approaches, Warren^" explained, both sides
are willing in most cases to make greater sacrifices.
The parties weigh the cost of concessions against the cost
of the anticipated strike. The length of time a dispute
has continued and the particular stage it has reached
will largely determine the kind and degree of pressure
which will be most effective.
When the union agrees to a postponement, the pres-
! sure for concessions on the employer is immediately re
laxed and the total balance of pressures making for
settlement.,is drastically altered.
When a strike is in effect, the longer it con
tinues, the greater is the pressure for settlement, and
the more successful is the intervention of the mediator.
Although agreeing with the proposition that timing
in making recommendations for solution of the dispute is
important, Peters found it equally necessary for the
mediator to be prudent in timing his expressions of opin
ion. He maintained that:
An ill-timed observation about a fact
which may be obvious to the conciliator,
Warren, "Mediation and Fact-Finding,” o£. cit.,
p. 296.
I
I
1 0 0
but is not'so obvious to the party he is
talking to, can cost him the confidence of
that party.^
To clarify this idea, Peters offered the following
example:
At a certain stage in a wage dispute it may
be apparent to the conciliator that 30 is
the practical figure upon which both parties
can be made to agree. Yet the union might
ask him to sound out the management on the
possibility of a 100 settlement. Even though j
the conciliator is positive in his own mind i
that the management will not agree to this
figure, if he were to refuse to make such an
effort, or were to argue too vigorously on
the impossibility of a settlement at that '
figure, his impartiality would be seriously
questioned. It would be felt that he was
putting a feather-weight of pressure on the
management to move to a ton of pressure on
the union. Therefore, the conciliator might
find it expedient to attempt something that
he is positive will not work. Only after
the attempt has been made will that party
accept his estimate of the situation, which
would have been received with antagonism
had it been given earlier.
Proper timing is also essential when bringing a
situation to a head. If this is accomplished prematurely
it may increase the chances for a strike. For maximum
I
results the parties should also use discretion in timing
information given to the mediator. He functions most '
effectively, Peters^ believed, when he reflects the real i
t O I o
Peters, ojd. cit., p. 227. Ibid.. p. 223.
44
Ibid.. pp. 232-233.
1 0 1
pressures of the parties on each other at each stage of
the situation. The parties should keep him sufficiently
informed of their strategic considerations, so that he is
always one step ahead of each stage of the negotiations.
Thus, he can effectively influence the development to the
next stage of the situation. If the conciliatoe is given
confidential information by one of the parties too far in
advance of the particular stage of the negotiations, his
functions can be distorted. In spite of himself, he
cannot help functioning in a lopsided manner, because of
his basic relationship as a confidant of both parties
and as a bearer of the pressures of one to the other.
Public Opinion
It was pointed out by Warren that pressure of pub
lic opinion on the disputants is a particularly useful
tool of the mediator. In public utilities and industries
where the public interest is vitally affected, such as
coal, firm positions by the negotiators are difficult to
maintain when confronted by public censure.
The consuming public does not like to be
put to inconvenience due to work stoppages
and customarily will assess blame on the
102
basis of its understanding of the
strike issues. . . M?
The marshalling of public opinion which exerts
political and social pressures on the parties in conflict,
i f 6
Warren believed, is an important function of the medi
ator. He will keep the parties informed as to how public
opinion is developing. Sometimes he will release a press j
notice, calculated to channel public pressures.
In some instances mediators have publicly placed
responsibility for a work stoppage on either or both
parties; however, in most cases the mediator simply urges
that the parties consider outside attitude and opinions.
Jackson indicated that one of the milder reserve
j
powers of the mediator lies in his ability to influence 1
outside factors which may have impeded a settlement;
Not infrequently one of the parties
would be willing to accept a compromise
' settlement, were it not for outside
political considerations. Management
might be concerned with the effect of a
certain clause upon other negotiations in
which it has an interest. The union might
be afraid that the best available deal !
would prove unpopular with the rank and file,
or damaging in the light of gains made by a
rival organization. In such instances, but
again with extreme caution, the mediator
^ Warren, Settlement of Labor-Management Disputes.
op. cit.. p. 31..
Warren, Mediation and Fact-Finding,op. - git4-~P. 294.
103
might explore possible ways of miti
gating the wider repercussions of agree
ment or methods for removing the onus of
an agreement from the party concerned
and placing it upon his own shoulders.^-'
Outside pressures will influence the mediatorfs
| efforts in varying degrees, in the same manner as he may
Fact-finding. Warren was of the opinion that fact-
finding is a strong form of mediation, more for the pur-
t
; pose of exerting pressure than as a method for finding
facts. Fact-finding is an investigation into the issues
in controversy by one individual or several and may be in
J the form of a board or panel. It is the public recommen
dation that the fact-finding agency makes that rallies
public opinion,resulting in pressure on the disputants,
thus forcing an agreement.
He cited two objections against giving fact-finding
boards authority to make public recommendations:
. . . One is that there is no assurance
that the fact finders will be either im
partial or expert. This is ture, but the
objection does not touch on the merits of
the procedure. The other objection is
that the procedure is closely akin to compul
sory arbitration and that it is difficult to
j attempt to channel and influence them
47
Jackson, ojd. cit., p. 36.
withstand the pressure for acceptance
of the recommendations. This claim has
not always been borne out in practice,
as witness the recommendations of the
wage stabilization board in the 1952
steel dispute. It is evident, however,
that the value of the procedure rests on
the fact that the parties usually cannot
ignore public recommendation.^"
Economic Pressure
The economic forces in labor disputes are generally
the primary causes making for a settlement. The employees
loss of pay and the employer’s loss of production are the
greatest of the economic pressures. Lovell’s conclusions,
as a result of his study of the mediation process revealed
that:
Research on the mediation process
suggests that "economic" rather than
"human factors" give the most satisfac
tory explanation of deadlocks in contract
negotiation and, hence, that the mediator’s
primary role is not one of resolving per
sonality clashes between the negotiators.^
The mediator has little.direct control over econ-
50
omic pressures, Warren-' noted, other than measuring their
impact and making certain that the parties understand how
Warren, Mediation and Fact-Finding,op.cit.,p. 300.
49
Lovell, 0£. cit.. p. 20.
50
Warren, op. cit.. p. 299*
105
these forces will contribute to the format of the final
! settlement.
I
The economic position of the parties. Warren
I modified his view propounded above in a later passage in
!
which he illustrated how a mediator may effectively channel
pressures which result from the comparative economic
strength of the parties. He explained that mediation is
j more difficult in periods of full employment, where there
; are large employee savings, ample union war checks, and
i
I sizeable reserves. j
I f
i The mediator’s ability to appraise possible future |
i !
| trends and the comparative economic positions of the j
disputants will determine to a significant degree his
effectiveness in using economic pressures.
If the union is particularly weak be
cause of a loose labor market and a deficient
union treasury, for example, there is slight
pressure on the employer to make concessions.
Under these circumstances the mediator’s only
recourse for settlement may be to convince the
union that it will not be able to carry on a j
successful strike. i
Similarly, in a tight labor market
and where a loss of production is costly
to the employer, a small show of strength j
by the union may result in major gains. j
If, however, the strength of the two
parties is in approximate balance, the
mediator may be able to channel pressures
106
for the most effective results. Thus
the mediator may get an employer’s
i customers to insist on the importance of
| an early settlement, so that they will
not be deprived of their source of supplies.
In the case of a union where a substantial
degree of public interest is involved, the
! mediator may point out that postponement of
I the strike is the only way to avoid a
government injunction. . . .51
The mediator, through intelligent appraisal of the
economic pressures at work and the comparative economic
strength of the parties in the dispute situation, can
, exert and channel these pressures, as an effective tool
for securing agreement.
t t t q t t m m a d v
J_ i. _L. * U W i ' u h A U X
i :
1 The mediator uses several tools in applying various '
techniques to labor disputes. His personality, training
and skill are some of these tools which play a significant
part in effective mediation. Another weapon which the
mediator has at his command is the pressure factor.
Through the judicious and timely exertion and channeling
of various pressures brought to bear on the parties in
, conflict, the mediator is able to resolve the dispute.
' t
These pressures— economic, social, and political— can be j
!
controlled by the mediator in varying degrees.
i
I
• " I
51 Ibid.. p. 297. 1
107
Personal characteristics of the mediator. Suc
cessful mediators are usually endowed with a number of
common basic characteristics. Of primary importance is
the trait of impartiality. His biases and prejudices
must be kept at an absolute minimum. A formal education
is not a prerequisite for successful mediation, but a
knowledge of collective bargaining and labor law is
essential. He must be able to inspire confidence and have
imagination and perception. He must have integrity and
facility of expression. He should be above average in
intelligence. j
This profile substantially reflects the opinions j
expressed by the individuals cited in this chapter. Both j
!
mediators and students of the mediation process have
placed emphasis upon some traits, characteristics, and
skills as being more important than others. Disagreement :
is generally over the degree of importance of those per
sonal characteristics in performing the mediator’s func
tion. It is not known, however, whether mediators can be
characterized by a personality pattern, or by the manner
in which they are selected. Some deviations and modifi
cations of the profile were indicated.
Warren feels that in some situations definite
biases are more effective. For example, a mediator with
log
an employer point of view may be able to impress an
I
| employer when necessary, and one with a union bias could
do likewise with a union.
Ching contended that a man’s background in either
union, management, or government does not indicate that he
is biased. It all depends upon the man. A man’s useful
ness as a mediator would end if his bias were established.
The results of the study conducted by the Univer
sity of California Institute of Industrial Relations sup-
i
I ported the conclusions of the outstanding mediators and
j students of the mediation process as to what constitutes
i
' a successful mediator.
i
' The pressure factor. The mediator applies pres
sure on the parties to force them into reconsidering
their positions. The pressures may be of a personal, so
cial, political, or economic nature. Through the rise of
various tools, the mediator is able to increase or de
crease the level of pressures,as well as to channel and
control them in their many forms. Pressures may be
either real or false. Mediators who convey falsa pressure
lose influence with the disputant.
The strike problem. The pressure of the right to
strike or lockout keeps the parties negotiating. The
109
strike deadline increases the pressure on both parties
and is a very effective working tool for the mediator.
His skill in determining how much pressure to use will
effect the outcome of his efforts.
The mediator may sometimes attempt to get an ex
tension of the strike deadline. It was argued by Peters
that the proposal for the extension should be made after
all efforts for negotiation have been exhausted. This
time extension would then act as a new pressure factor.
If an extension of the strike deadline is agreed to before
negotiations have reached a peak, then the parties will
T-T n 4 V* y - v VJ At.T *?0 A rtVl y - » *P/\V» ¥V» O « ■ ! e ~ f » W O V * ? - -
vtlCCO-U CXi. i . lj> JL - M U i i C a b l y lyt-O C x Ju .». a X C? -i. O x Oi vyiiO v x O C X O ill Cti-k. uxCt.4i.JL
mum efforts and the old deadline loses significance. The
level of pressure in a situation is governed by the like
lihood of a strike and the party’s ability to hold out,
once the strike is in effect.
The Kerr and Siegel Study
The Kerr and Siegel study revealed that industries
in democratic,industrialized countries could be classified
according to their propensity to strike. Some were con
sistently strike free and others were consistently strike
prone, with a range of industries in between.
1 1 0
This study could be of tremendous aid in fore
casting what the eventual terms of settlement would be
and the manner in which to exert, channel, and control
the level of pressure for the termination of disputes.
I Timing of Recommendations and Settlement
! The timing of the mediator*s opinions and recom
mendations and the timing of the settlement are both
i
| essential tools of the mediator, and his technique in the
! effective application of this pressure method will have a
direct hearing on the solution of the conflict.
As the strike deadline approaches, both sides are
j usually willing to make greater concessions. The longer
I
1 a strike is in effect, the greater is the pressure for
settlement.
The mediator functions most effectively when he
reflects the real pressures of the parties on each other
at each stage of the dispute. Prematurely bringing a
situation to a head increases the probability of a strike.
Ill-timed expression of opinion may cause the
mediator to lose the confidence of the parties. Indis
creet timing of information given to the mediator by the
parties may hinder him from effectively fulfilling one of
his functions, that of being one step ahead of each stage
Ill
of negotiations,so that he can adequately prepare for
the rest.
Public opinion. The pressure of public opinion on
the parties in conflict is a mediator1s potent weapon.
Various techniques are used for marshalling and channelling
public pressures to soften firm positions assumed by the
negotiators.
The mediator keeps the parties informed as to the
attitude of the public. He may release press notices to
J
influence political and social pressures. Sometimes he j
publicly places responsibility. In most instances, how
ever, the mediator will ask the parties to take cognizance
of the publicfs attitude and opinions. Political factors, j
such as management negotiations with other unions, or
gains made by rival unions, may prevent a settlement.
Mediators influence and are affected by outside pressures.
Fact-finding. The .-primary function of fact-finding
has been described as that of exercising public pressure.
The pressure of public opinion on disputants resulting
from the public recommendations of the fact-finding agency
usually forces an agreement. Two objections against the
procedure are that (1) there is no guarantee that fact
finders are impartial or expert, and (2) the procedure is ■
I 112
I
I
| similar to compulsory arbitration. On the other hand,
i
i the merit of fact-finding is that management and the uniors
j cannot disregard public recommendations.
!
i Economic Pressures
r
j Economic pressures are the foremost causes for
dispute settlement. Loss of pay for workers and loss of
production for management are the most significant of
| these pressures.
i 1
; Warren stated that mediation is more difficult in |
! i
periods of full employment and prosperity, because the |
I
; parties are able to hold out longer. Through an intelli- j
i
gent appraisal of the comparative economic strength of the
parties, the economic pressures prevalent, and the ability ;
to forecast future trends, the mediators can effectively
exert and channel these pressures for solution to a
dispute.
CHAPTER V
SUMMARY AND CONCLUSIONS
In this chapter the principal developments are re
stated and the most important findings briefly enumerated, j
!
Several problems beyond the scope of this study, for which |
further profitable research could be made,are noted in
9 i
• the final portion of this section.
i
!
: j
I. THE MEDIATION PROCESS
i
!
Mediation is an ancient process which was born as
a result of man’s need for a means of resolving conflicts I
over the disposition of economic goods and services. ,
Mediation expanded with the growth and development
of collective bargaining in the United States. In the
highly organized industrial society of today, the mediator1
functions as a skilled specialist.
Mediation and conciliation are regarded as com
ponents of the same process; these terms can be used
interchangeably.
i
Disagreement as to Function and Scope of Mediation
There is much disagreement as to the function and
114
scope of mediation among writers and practitioners.
Despite the opinion held by some that mediation is an aid
to collective bargaining, in recent years the process has
been widely accepted as an intrinsic part of collective
j bargaining.
i
| i
j Arbitration and Mediation i
Two forms of arbitration which have sufficient j
| characteristics of mediation to be labeled mediation pro-
; cesses are "tripartite arbitration" and "permanent impar- 1
i ‘
tial chairman." Arbitration and mediation are two sep- i
arate and distinct processes, notwithstanding the fact j
! j
' that arbitration in the forms indicated above shade into !
j i
1 mediation.
A significant function of the mediator is to limit
the questions upon which the arbitrator can render a
decision.
Tactical, Strategical, and Preventive Mediation
Three types of mediation have been differentiated
on the basis of the mission to be accomplished. They are
classified as tactical, strategical, and preventive. *
The function of tactical mediation is to reduce or '
terminate an existing dispute. The purpose of strategical
' mediation is to create a favorable environment for the 1
115
parties. The goal of preventive mediation is to remove
| the cause of potential disputes.
Form of Mediatory Agency Influences Mediation Techniques
The type of mediatory agency employed in a par-
; ticular dispute will be determined by the special con
ditions and circumstances involved.
Factors which determine the mediation techniques
used in a specific dispute are governed by the form of
j . . .
; mediation machinery, such as an individual, board, panel,
i i
j committee, or tribunal; the personalities of the mediators j
i !
: and negotiators; practices in the industry; the mediator*s
j tools; and the objectives sought by the mediators and
negotiators.
II. MECHANICS OF MEDIATION
Mediation occurs at the conference table and behind
the scenes. Although techniques used will usually differ
in both instances, the basic mechanics of mediation remain ;
I
i
the same.
Timing of initial intervention. The timing of the
mediator's entrance into a particular dispute is an !
essential part of his technique and may have tremendous
impact on the success or failure of his efforts. Early
116
i
t
: entrance is advocated by some because it is felt that the
i
mediator would then have more time to become better
i
, acquainted with issues and personalities, thus rendering
i
I him more effective in handling impasse situations.
1
j Premature entrance could be harmful. Most students
| and practitioners, however, feel that premature entrance
, by the mediator could be harmful. They contend that col-
!
1 lective bargaining efforts should be exhausted prior to
I the mediator1s initial intervention. They point out that
i
I the parties relax pressure upon each other when the medi-
I
i ator enters prematurely. The mediator, this group holds,
should enter the situation either immediately prior to or
after a deadlock.
Government mediators enter during this period for
fear a strike would result from further delay, and that
direct negotiations might bog down, if there were early
intervention. The disputants are assumed to be most sus
ceptible at this stage of negotiations.
The impartial umpire. Some individuals are of the
opinion that the impartial umpire is the most effective
means for settling conflicts. He becomes thoroughly
acquainted with the industry, negotiators, and issues over
117
a great many years and is, therefore, better able to cope
! with problems that arise. A contrary view argues that the
; impartial umpire generally enters a case prematurely.
i
5 Conferences
All the mediator’s techniques and skills are mus-
i tered and put into action around the conference table.
i
i It is here that he acts most effectively and plays his
t
| most important role. Either one or both parties request
1 his services. In either event he must convince them of
i
; his impartiality.
!
' Preliminary conferences * At times it may be neces
sary to hold preliminary conferences sufficiently to cool
the emotions of the adversaries, so that they can be
brought together. The mediator can become better ac
quainted with the parties and acquire a background of the
conflict.
Joint or separate sessions. When to conduct joint
or separate sessions and when to let the parties blow off
steam or calm them down, are vital components of the
mediator’s technique. Bargaining sessions may be held at
the same headquarters or at a location chosen by the
’ parties.
n d
The mediator is most effective in separate
sessions, as he is able to be more active. In joint
meetings, he attempts to guide the discussions. He assumes
this passive role to refrain from antagonizing either
party by his positive statements. He strives to effectu
ate a settlement formulated by management and labor.
Separate sessions are more conducive to greater
freedom of expressiomhostilities and tensions engendered
in joint meetings are lessened when the parties meet
separately.
Separate sessions may disrupt normal communications
and time may be wasted where complicated issues are preva
lent. Explanations are from one party to the mediator,
who must then re-explain it to the opposite party. This
type of procedure could lead to misunderstandings.
Many approaches to mechanics of mediation. Various
techniques and practices, as applied to the mechanics of
mediation, were presented. Discussion covered the media
tor’s activities in getting the parties together; elicit
ing full expression of positions of the disputants;
cooling emotions and passions; deflating arguments to
obtain a true perspective and discovering the real issue;
influencing positions; suggesting alternate solutions;
and aiding in the form of settlement.
119
Non-conference Mediation
Non-conference methods have been extremely effec
tive in the settlement of disputes. Behind-the-scenes
techniques create pressures for solution. Some of these
techniques are conversations with higher-ups in the
company or union echelon; friends or associates of the
parties; speeches at union membership meetings; and talks
with company creditors or public recommendations. Non
conference mediation is a direct procedure for increasing
pressure on negotiators for settlement.
Semi-permanent vs. ad hoc mediators. Semi-permanerfc
rather than ad hoc mediators are more likely to use non
conference techniques, inasmuch as the former are usually
more familiar with practices in the industry, the par
ticular situation, and the parties.
Conflicting opinions exist as to the relative ef
fectiveness of these two types of mediators. One widely
held view is that mediators should be specialists,
thoroughly familiar with the problems and personalities of
a specific industry, acquired usually through an asso
ciation over many years with an industry or’ a union.
Others are of the opinion that selected ad hoc mediators
120
| with particular training experience and prestige can
i
function just as effectively.
III. THE MEDIATOR'S TOOLS
The mediator uses many tools in applying his tech-
i
: niques to labor disputes. Personal characteristics, such
as personality, training, and skill, are reflected in the
mediation effort. Economic, political, and social pres-
j sures are also brought to bear on the parties by the
■ mediator. He exerts, controls, and channels these pres-
i
sures in the manner best calculated to produce a satis-
fsct‘ Or,r ssttX01120nt to 9.XX " n£L 2 ? % ‘ fciLss cone 92^120 cl = .
I
! Personal Characteristics of the Mediator
Impartiality is the most important single trait
that a mediator should possess,according to most students
of the process and practitioners in labor relations. He
should be as unbiased and unprejudiced as possible. A
formal education is not necessary for successful media
tion; however, the mediator should have a knowledge of
labor law and collective bargaining. He must be above
average in intelligence and articulate. He must be a per
son of unquestionable integrity.
j 121
I
i
i Mediators are in disagreement over the degree of
i
I importance of these personal characteristics for effective
mediation. It is not known whether a mediator can be
characterized by a personality pattern, or by the manner
, of his selection.
i
j The University of California Institute of Indus
trial Relations supported the conclusion of outstanding
mediators indicated above, as to what constitutes a
i
| successful mediator.
i
The Pressure Factor
The mediator applies pressure to the parties, as a
j means of forcing them out of firm positions. He is able
to increase or decrease the level of pressure,as well as
to channel and control them in their varied forms. These
pressures may be personal, social, political or economic
in character. They may be either real or false.
The Strike Problem
The pressure of the strike or lockout deadline is
a very effective working tool for the mediator and helps
the parties negotiating. His skill in determining the
level of pressure to exert as these deadlines approach
has a direct bearing on the outcome of his efforts.
122
| The weight of authority holds that proposals for
|
j the extension of the strike deadline should be made after
all efforts for negotiations have been made, so that the
j time extension would act as a new pressure factor.
j The level of pressure is governed by the likelihood
|
of a strike and the ability of the parties to hold out
once the strike is in progress.
i i
The Kerr and Siegal study. This study demonstrated
I i
| thht industries in democratic, industrialized countries j
: I
could be classified according to their propensity to j
j
strike. Some of these industries were strike free or i
I
strike prone. Others ranged in between. j
I
|
This study could be of aid in forecasting eventual !
settlement terms and as a guide to the use of pressures by !
the mediator.
Timing of Recommendations and Settlement
The timing of the mediatorTs recommendations and
the timing of the settlement are important parts of the
mediator*s technique.
Both sides are usually willing to make greater :
j
concessions as the strike deadline approaches. The pres
sure for settlement is greater, the longer a strike has
been in effect. '
123
If the mediator brings the situation to a head
I
j prematurely, he increases the probability of a strike.
He must reflect the real pressures of the parties at each
stage of the dispute.
The mediator may lose the confidence of the parties
by ill-timed expressions of opinion. The parties should
also use proper judgment in timing explanations given to !
I
the mediator, so that he could be one step ahead of each J
! negotiation and could adequately prepare for the next.
Public Opinion ;
The mediator uses various techniques for marshaling J
' ' I
and channeling the pressure of public opinion to soften i
i
firm positions, assumed by negotiators. He keeps the \
j
disputants informed on the attitude of the public. He may
influence political and social pressures through the re
lease of press notices. Sometimes he affixes responsi
bility to one or the other through public releases.
In most cases, however, the mediator will ask the |
parties to consider the public attitude and opinions.
Mediators influence outside pressures and are, in turn,
affected by them.
Gains made by rival unions or management nego-
, tiations with other unions are some of the political
factors which may prevent a settlement.
124
I Fact-finding;. The purpose of fact-finding is to
exert public pressure. Pressure of public opinion on
disputants resulting from public recommendations of the
fact-finding body, in most circumstances, forces
agreement.
Two objections against fact-finding procedure are:
(1) there is no guarantee that the agency members will be
j impartial or expert, and (2) it is similar to compulsory
arbitration.
Fact-finding has been widely used because manage-
1 ment and unions cannot disregard public recommendations.
i
Economic Pressures
Economic pressures are a primary cause for the
settlement of labor disputes, the most significant being
worker’s loss of pay and management’s loss of production.
The parties are able to hold out longer in periods
of full employment and prosperity and,hence,mediation is
more difficult under these circumstances.
The mediator,through an intelligent appraisal of
comparative economic strength of the parties and through
his ability to forecast future trends, can effectively
125
channel these pressures for satisfactory settlement of a
dispute.
IV. CONCLUSIONS
j 1. There is no clear agreement as to the signifi-
l
i cance, nature, or function of mediation. The weight of
i
authority holds that it is a part of collective bargaining
rather than an aid or adjunct. I
2. The success of a particular technique is dimin-
! ished by inherent limitations in the mediation process. ;
I i
Issues involving interests are more mediable than those j
l
involving rights. Subjective factors also cause limita-
I
[ tions of the process.
I
3. Mediation techniques appear to be more effec
tive in small and, .intermediate cases, as distinguished
from large corporations and large union disputes.
4* Variables, such as practices in the industry,
the abilities and temperaments of the parties and the
mediator, and the contractual agreement,will determine the ,
kind of mediator used, the type of mediation followed, and ;
!
the mediation techniques applied. I
!
5. The form of mediatory agency employed, such as I
impartial chairman, panel, or fact-finding group, is
126
considered by practitioners to be part of the mediation
; technique.
6.- Mediation is essentially a voluntary process,
no matter what form the mediatory device assumes or what
1 method of procedure it adopts.
i
j 7- The conference is the heart of the mediation
| process, and it is here that the mediator makes his most
| important contribution.
■ 6. Preventive mediation techniques for elimin- !
ating the causes of industrial dispute are playing an :
I I
I i
j increasingly greater role in mediation efforts.
t
9. Behind-the-scenes 'techniques are more likely
to be used by semi-permanent, rather than ad hoc media
tors, because the former are usually more familiar with
the situation and the parties.
10. Impartiality is a prerequisite for a successful
mediator. A formal education is not necessary. A knowl
edge of labor law and collective bargaining is essential.
11. In applying his technique the mediator uses
many pressure tools. They are personal, social, political,
and economic in nature. In exerting and channeling these
pressures on the disputants, he controls the level of
pressure so as to resolve the dispute.
j 127
I 12. The Kerr and Siegel study could be used as a
I
j guide to the use of pressure by the mediator.
i
13. The timing of the mediatorfs recommendations
and terms of settlement is a vital part of his technique
and it can well determine the outcome of his efforts.
; i
1 1
j
V . R E S E A R C H P R O B L E M S j
I
This survey of mediation techniques suggests sev
eral areas for further study.
I A field in which little has been written and where
useful study and research could be undertaken is the ef
fect of 'governmental emergency procedures on mediation
techniques. What effect does the injunction or plant
seizure have upon the mediation process?
A comparative study of mediation techniques in
democratic, industrialized countries is also indicated.
Successful techniques used in other parts of the world may
profitably be applied here.
An extremely important research problem would be to,
determine whether there may be a personality pattern com
mon to successful mediators. Perhaps a case study could ,
1
be made in which specific traits of the mediator could be
shown to have influenced markedly the mediatory efforts.
128
There is a great need for more effective means of
j resolving industrial strife so widespread in recent years.
Intensive research and study to alleviate this economic
condition is vital.
BIBLIOGRAPHY
130
A. BOOKS
Chase, Stuart. Roads to Agreement. New York: Harper and
Brothers, 1951. 250 pp.
Ching, Cyrus S. Review and Reflection. New York: B. C.
i Forbes and Sons Publishing Company, Inc., 1953*
| 204 pp.
! Jackson, Elmore. Meeting of Minds. New York: McGraw-
| Hill Book Company, 1952. 200 pp.
i Peters, Edward. Conciliation in Action. New London:
I National Foremen Institute, Inc., 1952. 266 pp.
|
i Warren, Edgar L. The Settlement of Labor-Management
Disputes. Rio Piedras, P. R.: University of Puerto
! Rico Press, 1951. 75 pp.
B. BOOKS: PARTS OF SERIES
Carpenter, Walter H., Jr. Case Studies in Collective
Bargaining. Prentice-Hall Industrial Relations and
Personnel Series. Edited by Dale Yoder. New York:
Prentice-Hall, Inc., 1953.
Davey, Harold W. Contemporary Bargaining. Prentice-Hall
Industrial Relations and Personnel Series^ Edited by
Dale Yoder. New York: Prentice-Hall, Inc., 1951.
C. PUBLICATIONS OF THE GOVERNMENT, LEARNED SOCIETIES,
AND OTHER ORGANIZATIONS
i
Bullen, Frederick H. "The Mediation Process," New York
University* s First Annual Conference on Labor, pp.
105-143. New York: Mathew Bender Company, 194&.
Ching, Cyrus S. "Some Instruments of Industrial Peace," I
Annals of the American Academy of Political and Social 1
Science. Vol. 274*
131
Cole, David L. "Significance and Function of Mediation,"
Proceedings of Sixth Annual Conference on Industrial
Relations. Buffalo: University of Buffalo, 1954*
j
Federal Mediation and Conciliation Service. Seventh
Annual Report, Fiscal Year. 1954. Washington: Govern
ment Printing Office, 1955*
j Stark, Arthur. "Comment on Government Mediation and Free
j Collective Bargaining," Proceedings of Sixth Annual
Conference on Industrial Relations. Buffalo: Univer
sity of Buffalo, 1954* J
I
United States Bureau of Labor Standards. Federal Labor j
Laws and Agencies. Washington: Government Printing 1
Office, 1950. ]
i I
' _______ . State Authorities Engaged in Mediation and Con- 1
i ciliation Activities. Washington: Government Printing !
Office, 1950.
Wallen, Saul. "Voluntary Mediation," Publication 12 of j
the Industrial Relations Research Association, pp.
214-287• Madison, Wisconsin: Industrial Relations
Research Association, 1954*
Warren, Edgar L. "The Role of Public Opinion in Relation
to the Mediator," Proceedings of the Fifth Annual
Meeting of the Industrial Relations Research Asso
ciation. pp. 1-9* Los Angeles: Institute of Indus
trial Relations, 1953*
_______ . "Discussion on Mediation," Publication 12 of the
Industrial Relations Research Association, pp. 2^9-290.
Madison, Wisconsin: Industrial Relations Research
Association, 1954*
Weisenfeld, Allen. "Some Thoughts on Labor Mediation,"
Publication 12 of the Industrial Relations Research
Association, pp. 276-283. Madison, Wisconsin: Indus-
trila Relations Research Association, 1954*
Winter, Jack. How the Federal Mediation and Conciliation ■
Service Helps Small Businesses. United States Small
Business Administration. Washington: Government
Printing Office, 1954*
132
Yoder, Dale, et al. Industrial Relations Glossary.
Minneapolis: University of Minnesota Press, 1948.
D. PERIODICALS
Chalmers, W. Ellison. "The Conciliation Process,"
Industrial and Labor Relations Review. 1:337-350,
April, 1948.
I
1
Colvin, H. T. "Mediation and Conciliation Under Labor-
Management Act of 1947,” Labor Law Journal,, 1:69-93,
November, 1949-
Kerr, Clark. "Industrial Conflict and Its Mediation," The
American Journal of Sociology, 60:230-245. November,
1954.
Lovell, Hugh G. "The Pressure Lever-in Mediation," Indus- 1
trial and Labor Relations Review, 6:20-30, October,
1952.
Maggiolo, Walter. "Mediator*s Role in the Labor Stage, j
Labor Law Journal, 41632-636, September, 1953* j
Mayer, Henry. "Should. Politics Make Mediators Expend
able?" Labor Law Journal. 4:311-317, May, 1953.
Miller, Max J. "Comments on the Doctrine of Acceptability'
of Labor Arbitration Awards— Mediation vs. Arbitra
tion," Arbitrators J ournal, 4:182-165, autumn, 1949.
Prasow. Paul. "Preventive Mediation." Labor Law Journal,
1:866-666, 911, August, 1950.
Rose, Arnold; "Needed Research on the Mediation of Labor j
Disputes," Personnel Psychology, 5:167-200, autumn.
1952. 5
Stark, Arthur. "Are-There Too Many Mediators?" Labor Law i
Journal. 6:34-41, January, 1955. j
Warren, Edgar L., and Irving Bernstein. "The Mediation
Process," Southern Economic J ournal. 15:441-457, !
April, 1949. 1
133
Weschler, Irving R. "Who Should Be a Labor Mediator?"
Personnel, 26:222-227, November, 1949*
i
' _______ . "The Personal Factor in Labor Mediation," Per
sonnel Psychology 31113-132, summer, 1950.
lager, Paul. "Communications and Mediation," Labor Law
Journal. 4:539-540, August, 1953.
Yagoda, Louis. "Review of Conciliation in Action," Indus-
I trial and Labor Relations Review. 1:635, July, 1953*
E. ESSAYS AND ARTICLES IN COLLECTIONS
Kerr, Clark. "Interindustry Strikes:An International Com- j
Parison," Industrial Conflict. Arthur Kornhauser, j
Robert Dubin, and Arthur M. Ross, editors. New York: j
McGraw-Hill Book Company, Inc., 1954. Pp. 1B9-212. •
' j
Warren, Edgar L. "Mediation and Fact Finding," Industrial
Conflict, Arthur Kornhauser, Robert Dubin, and Arthur*
M. Ross, editors. New York: McGraw-Hill Book Company,
Inc., 1954. Pp. 292-300.
F. UNPUBLISHED MATERIALS
Lovell, Hugh C. "The Mediation Process." Unpublished
Doctoral dissertation, Massachusetts Institute of
Technology, Cambridge, 1951.
G. MISCELLANEOUS
Research Institute of America. "Research Note on High
Test Techniques for Mediating Labor Disputes." 2 Labor
Coordinator-L 311.
Memo prepared by William Simkin, Wartime Chairman of the
War Labor Board Shipbuilding Commission.
APPENDIX
135
Railway labor legislation and labor relations in
the railway industry have been the source of numerous
mediation procedures and techniques employed in other
industries.
The following brief summary of several of the most
i
important railway acts and their implementation reveals j
how mediation in this industry made significant contribu- j
I
!
tion to the mediation process.
Arbitration Act of 1&&S
i
This was the first act dealing with labor relations ;
i
in the railway industry. It provided for the appointment,
by the president, of a temporary commission of three mem
bers to investigate any labor dispute between a carrier
and its employees. A controversy could be submitted to a
board of arbitration at the request of either party.
The arbitration provisions of the act were never
used. On one occasion, during the Pullman Strike of 1$96,
the investigating powers were used but did little to bring
about a settlement.
Erdman Act of 1&9& i
This act provided for government mediation and con
ciliation of labor disputes in the railway industry; a new
contribution to dispute settlement for railroads. The
.136
United States Commissioner of Labor and the Chairman of
j the Interstate Commerce Commission were to offer their
[
services at the request of either party. If mediation
: and conciliation failed the commissioner was responsible
! for the appointment of a board of arbitration to bring
about the settlement of the dispute.
The use of the mediation and conciliation provisions
j of the act failed initially but showed marked success
j
i after 1906.
| |
IMewlands Act of 1913 i
The government found through experience with the J
i
Erdman Act that it must rely more upon mediation than J
j
arbitration for dispute settlement in the railway industry.
The Newlands Act, therefore, created a permanent
Board of Mediation and Conciliation. The success of
government intervention under this act established medi
ation as the most effective device in resolving railway
labor conflicts.
Adamson Act of 1916.
The Board of Mediation and Conciliation was unable
to settle a dispute which resulted over a demand by the
Railroad Brotherhood for an eight hour day and time and
one-half for overtime. This occurred in the summer of ;
137
1916, a period of emergency before World War I. This
was an act of Congress to meet the threat of a railroad
f
strike and was apparently the first law passed by Congress
to settle a specific dispute,
j Shortly after the law was passed the railroads were
I taken over by the government. Methods were then devised
I
for correcting the weaknesses of mediation and arbitration
as manifested under the Newlands Act.
1 Railway boards of adjustment were created with
! authority to make decisions concerning wage schedules or
agreement disputes.
Transportation Act of 1920
t
The railroads were returned to the owners by this
act. The United States Railroad Labor Board was created
to decide all disputes that could not be disposed of
through conferences with carriers* and employees* repre
sentatives .
Boards of labor adjustment could be set up by the
parties to decide disputes concerning grievances, rules
or working conditions not resolved in conference.
Mediation was not provided for in the act, despite
its proven effectiveness in handling railway labor
disputes.
136
This act was extremely important because it paved
the way for the Railway Labor Act of 1926, which with the
amendments of 1934, 1935 and 1940 provides the present
method for dealing with controversies in the transporta-
| tion industry.
The Railway Labor Act j
Congress attempted in this law to incorporate all j
I J
! the best provisions of previous legislation regarding the j
I vast transportation industry. J
i Originally, jurisdiction of the act covered the j
i
! railroad industry only; however, commercial airlines were
t
added in 1936.
i
There is no conflict between the act and the Nation- :
>
al Labor Relations Act, inasmuch as the latter excludes :
any persons subject to the Railway Labor Act.
Responsibility was placed upon the carriers and
their employees to settle disputes through conferences
without outside intervention.
Representatives of the parties are to be chosen
without outside influence or coercion.
The National Railroad Adjustment Board created by (
this legislation is responsible for dealing with conflicts
over rights, while the Nation Mediation Board created in
139
1934 to replace the United States Board of Mediation
exercises jurisdiction over disputes involving interests.
Mediation procedures and techniques evolved through
the years derived from controversies in the railway in-
!
i dustry have made significant contribution to the mediation
I process.
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Asset Metadata

Creator Nierenberg, Norman (author)

Core Title A survey of mediation techniques

Degree Master of Arts

Degree Program Economics

Publisher University of Southern California (original), University of Southern California. Libraries (digital)

Tag Economics, General,OAI-PMH Harvest

Language English

Contributor Digitized by ProQuest (provenance)

Advisor Garis, Roy L. (committee chair), Phillips, E. Bryant (committee member), Pollard, Spencer D. (committee member)

Permanent Link (DOI) https://doi.org/10.25549/usctheses-c20-444648

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