STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 81-36
Issued: March 19, 1981
______________________________
)
BREWER SCHOOL COMMITTEE, )
)
Complainant, )
)
vs. ) INTERIM DECISION AND ORDER
)
BREWER EDUCATION ASSOCIATION )
NON-TEACHING PERSONNEL, )
)
Respondent. )
______________________________)
The Brewer School Committee filed a prohibited practice complaint with
the Maine Labor Relations Board (Board) on December 17, 1980 and an amended
prohibited practice complaint on January 2, 1981. Respondent, Brewer Educa-
tion Association Non-Teaching Personnel, filed an answer, incorporating a
motion to dismiss, on January 8, 1981.
A pre-hearing conference was held by Alternate Chairman Donald W. Webber
on January 27, 1981 and a Pre-Hearing Conference Memorandum and Order, dated
January 29, 1981, was issued and its contents are incorporated herein by
reference. Pursuant to said Order, the parties have, in appropriate briefs,
argued the issue of privilege of the mediator's report.
The Board will decide said issue of privilege as a question of law, in
the within Interim Decision and Order.
JURISDICTION
Neither party has challenged the jurisdiction of the Board and we con-
clude that the Board may hear and render an interim decision in this case as
provided in 26 M.R.S.A. 968(5).
DECISION
The issue presented to the Board by the parties is whether a mediator's
report or any portion thereof, may be subject to discovery by either party,
over the objection of the other party, for the purpose of introduction into
evidence before the Board, either
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in substantiation of said party's case-in-chief or for the purpose of impeach-
ment. Although it has long been the policy of the Executive Director to
refuse disclosure of mediators' reports as privileged, pursuant to the mandate
of 26 M.R.S.A. 965(2)(6), the above issue is one of first impression for the
Board. To resolve this issue, we must look not only to 26 M.R.S.A.
965(2)(6) and the policy underlying said section but also to the nature of the
mediation process.
Title 26 M.R.S.A. 965(2)(A) provides:
"It is the declared policy of the State to provide full
and adequate facilities for the settlement of disputes between
employers and employees or their representatives and other
disputes subject to settlement through mediation."
Paragraph E of the same statutory sub-section provides:
". . . The Executive Director of the Maine Labor Relations
Board, upon request of one or both of the parties to a dispute
between an employer and its employees, shall, or upon his own
motion or motion of the Maine Labor Relations Board may, proffer
the services of one or more members of the panel to be selected
by him, to serve as mediator or mediators in such a dispute. The
member or members so selected shall exert every reasonable effort
to encourage the parties to the dispute to settle their differences
by conference or other peaceful means. If the mediator or mediators
are unable to accomplish this objective and to obtain an amicable
settlement of the dispute between the parties, it shall then be the
duty of the mediator or mediators to advise the parties of the
services available to assist them in settlement of their dispute.
At this time, the mediator or mediators shall submit a written
report to the Executive Director stating the action or actions that
have been taken and the results of their endeavors."
The above statute makes it clear that a mediator is a facilitator of agreement
between parties to a labor dispute. He or she acts as a messenger or conduit
between the parties. The essence of mediation is that there be free and open
discussion between each party and the mediator. To foster such candid
discourse, 26 M.R.S.A. 965(2)(G) provides that any information, which either
party relates to a mediator during the course of mediation, is privileged.
Maintenance of said privilege is particularly critical where, as here, the
parties are not able to resolve their differences through the mediation
process. Were there no privilege, parties would be less than candid, in
anticipation of the possibility of unsuccessful mediation, and the mediation
process would be doomed to failure.
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Both the complainant and the respondent, in their memoranda of law,
recognize the wisdom and necessity of preserving the privilege, however, the
complainant avers that communications from each party individually to the
mediator could be deleted from the report by the Board, through in camera
inspection, and the balance of the report, if any, could be produced for use
as evidence. We disagree. The disclosures made by both parties are
inherently intertwined with the impressions of the mediator and the "results
of mediation" that to allow the disclosure of any portion of the mediator's
report would inevitably result in breach of the confidentiality of conver-
sations between the mediator and each party. Should we allow a transgression
of the privilege in any one case, the integrity of the mediation process would
be compromised and the process would lose substantial efficacy as a facility
for the resolution of differences between public employers and their
employees.
Secondly, in resolving the issue, we must look to the nature and purpose
of the mediator's report, 26 M.R.S.A. 965(2)(E) mandates the preparation and
submission of a mediator's report to the Executive Director only in cases
where the mediator's efforts were unsuccessful in resolving the dispute. The
purpose of said reports is to familiarize the Executive Director with progress
of the mediation process in each case and to inform him of the nature and
complexity of the unresolved issues. The Executive Director must be so
informed to assist him in the selection and appointment of fact-finding panels
in such cases. In the alternative, should the parties seek to waive fact-
finding pursuant to 26 M.R.S.A. 965(3)(0), the Executive Director must
determine whether the case is properly framed for direct reference to
arbitration. To make said finding, the Executive Director must, under Rule
5.01(B), consider (1) whether "substantial negotiating progress has been made
prior to fact finding" and (2) whether "the number of issues to be presented
to an arbitrator or arbitration panel are both reasonable and manageable."
To accurately evaluate whether said criteria have been met, the Executive
Director must have access to accurate, impartial, and comprehensive infor-
mation concerning the mediator's involvement in each case. It is, therefore,
vital that the mediators be as candid as possible, in their written reports,
to best assist the Executive Director in discharging his duty in connection
with both fact finding and arbitration.
In light of the above analysis, we hold that no portion of a mediator's
report may be released to either party to the mediation discussed therein,
over the objection of the other party. We will issue an interim order to
effectuate this conclusion.
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ORDER
On the basis of the foregoing discussion and by virtue of and pursuant to
the powers granted to the Maine Labor Relations Board by the provisions of 26
M.R.S.A. 968(5), it is hereby ORDERED that the complainant's request to the
Board for the production of all or part of the mediation report, prepared by
mediator James Adams and discussing the mediation sessions of October 2 and
23, 1980 and December 2, 1980, be and is hereby denied.
Dated at Augusta, Maine, this 19th day of March, 1981.
MAINE LABOR RELATIONS BOARD
/s/____________________________________
Edward H. Keith
Chairman
/s/____________________________________
Don R. Ziegenbein
Employer Representative
/s/____________________________________
Harold S. Noddin
Alternate Employee Representative
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