Shadow of the Law
As Robert Mnookin has written, much of negotiation
takes place against the backdrop of the legal structures that define the
parties' rights. Five Honeyman public decisions are reproduced here, chosen
because each illustrates a problem or a principle of the law's interaction
with ADR.
The first case below shows how even a battle that's
purely between lawyers, about a legal issue with constitutional overtones,
and supervised in different ways by federal and state courts, may still
find an ADR process the most practical way of reaching a conclusion.
State Bar of Wisconsin
(2008) is an arbitration award, in which (rather unusually) one of the
parties in dispute was the State Bar itself, while the opposing group was
headed by a past President of the State Bar. The issues centered on freedom
of association, i.e. whether objecting members of an "integrated" bar
association (one to which all Wisconsin lawyers were required to
belong) could be required also to contribute to a PR campaign — a Bar
initiative to which they objected on principle.
Meanwhile, in most negotiation settings there is (as
yet) little in the way of legal structure to the bargaining process itself.
Yet for many years, there has been a developing "law of negotiations" in a
few contexts where statutes explicitly compel substantive negotiation. This
class of cases seeks to define what must be negotiated under the relevant
statute, and sometimes, what the limits of good or bad faith are. The
remaining four Honeyman decisions selected for this page are representative.
One was for Wisconsin's Waste Facility Siting Board; the remaining three
were for the Wisconsin Employment Relations Commission.
Note: in these documents, non-substantive changes
have been made to accommodate conversion to electronic publication; for
example, formatting has not been preserved, and footnotes have in most cases
been converted to endnotes.
Troy Area Landfill vs. Town of
East Troy
(1984) was the "case of first impression" nationally under a novel type of
statute, which required Wisconsin landfill operators to negotiate terms of
operation with the local communities affected. The case illustrates a
rethinking of conventional assumptions of "good faith" requirements. This
was needed because there were particularly harsh potential penalties for
failure to negotiate, and less draconian remedies were available.
Brown County (1984)
demonstrates the complex interplay between public bodies' rights of public
policy management, and their bargaining obligations with unions that
represent their employees. This case arose over a unilateral action which
involved elements of both public policy and "mandatory" bargaining subjects.
Milwaukee Board of School
Directors
(1988) illustrates how good or bad faith in negotiations must be assessed in
the context of the accused party's "totality of conduct"—and that its
opponent's totality of conduct is not irrelevant to that assessment.
Racine Unified School District
(1992) is an insurance case. Employers' desire to reduce the rate of
increase in health insurance costs has led to a great deal of bargaining
over many years concerning how much freedom a given employer will have under
its labor contract to negotiate with health insurers, or to self-insure,
without needing to return to the bargaining table with the union. Cases that
challenge the scope of actions taken by employers without specific union
agreement have often become particularly complex. This case shows how that
complexity—and its attendant legal costs to both sides—accumulates.
|