Traditional Mediation Services
Mediation is a process through which a neutral third party is brought in to help employers and employees or their representatives negotiate an initial or successor collective bargaining agreement. This may occur when progress has stalled or simply when one party feels that the negotiations process could be made more productive with the help of an outsider.
To receive mediation services from the State's Panel of Mediators, one or both parties may submit a request to the Executive Director on the MLRB form 5 (PDF) for mediation. Mediation services may be requested any time prior to arbitration--it is not necessary for the parties to have reached impasse. Mediation services provided through the State's Panel of Mediators cost $300 for every four hours of actual mediation effort, plus expenses. The cost of mediation is shared by the parties.
The Mediator's Role
The individuals who make up the Panel of Mediators are experienced mediators who also have experience as negotiators. The mediators are familiar with the procedural and substantive issues that arise during negotiations and because of this, are often able to see issues and options others might not see. The mediator may be able to help the parties to define the issues, to understand each others interests and goals, and to generate new options. In addition, the mediators are encouraged to play an active role in offering suggestions on rewording, repackaging or restructuring proposals. Mediators will often meet or "caucus" with one side at a time to get an understanding of that side's position and whether there is room for compromise or movement of some sort.
Once the mediator fully understands the parties' positions, the mediator may be able to help out with suggestions or identify opportunities for settlement. The mediator may engage in what is known as "shuttle diplomacy", that is, moving back and forth between the two caucuses presenting each side's proposals to the other. The mediator may need to consider the most appropriate timing for presenting a proposal in order to maximize the possibility of settlement. The mediator may also send up trial balloons by making suggestions as if they were the mediator's own so there is no risk involved for the parties.
Confidentiality
The statute very clearly provides that any information disclosed to a mediator during mediation is privileged information, which means that whatever either party says to the mediator will not be disclosed to anyone without the approval of the party. The confidential nature of the discussions that occur with the mediator are critical to the success of the process: each side can feel free to open up to the mediator on the rationale for their positions, their bottom lines, and their relationship with the other side without fear that their statements will come back to haunt them either during the negotiations or outside that process.
If the mediator is not successful in getting the parties to resolve all of their disputes, the mediator advises the parties of the remaining dispute resolution procedures available: fact finding and interest arbitration.
Other Mediation Services
Members of the Panel of Mediators are available to assist the parties in resolving grievances. Despite their good faith, parties can, and often do, disagree over the meaning and intent of collective bargaining agreement provisions they have negotiated. The resulting disputes are resolved through the contractual grievance procedure, which usually culminates in final, binding arbitration.
In 2001, the Legislature amended Maine's laws (26 M.R.S.A. § 965(2)(F)) to permit members of the Panel to assist parties in resolving grievance disputes, if the parties had so agreed. The availability of grievance mediation service could substantially shorten the time required to resolve grievances and save the parties the cost of arbitration as well. In addition, parties tend to be more satisfied with results they have negotiated themselves than with those imposed by a third party.