The Future of the Labor Mediator (1992)
This paper was given at the 1992 annual conference of the Society of Professionals in Dispute Resolution, and published in its Proceedings. Responding to the paper were Harold R. Newman, Chair, New York State Public Employment Relations Board; Christina Sickles Merchant, Director of Labor-Management Cooperation, Federal Labor Relations Authority; and George Buckingham, Commissioner, Federal Mediation and Conciliation Service.
What do labor mediators do for a living?
A couple of decades ago that innocent question could have been simply answered. Raised now, however, it triggers a mix of hopes and fears that characterize a field beset by doubts over its direction and its prospects.
In this paper I'm going to try to suggest some potential answers. I'll disclaim right away any intent to provide more than an essay. There's a great deal of data buried in the fine print of agency reports, and buried deeper in internal discussions which aren't reduced to writing—certainly enough to give an enterprising academic plenty to work with. But I am not an academic, and this is in no sense intended as a rigorous analysis. At the same time, however, I'd like to try to put the discussion on a businesslike basis, and to suggest that an unsentimental look at ourselves as people who intend to stay in business might serve our field well at this juncture.
Any profession comes into existence to serve a felt public need—particularly when most of the members of the profession are going to be paid out of public funds. Over time, the circumstances which led to the original legislation may change. A moment's thought is therefore in order as to the original expectations of those who set up our system of labor mediation.
The enabling legislation, both federal and state, was relatively straightforward. Labor unions were on the rise, and represented a majority of workers in heavy industry, transportation, communications and other industries in which work stoppages caused substantial harm to third parties. The strike was the assumed result of any bargaining impasses. Labor mediation was therefore conceived of, and in particular its public financing was quite readily accepted, as a service which justified its existence by reduction of the costs imposed on the public by private-sector strikes. The services mediators were expected to provide were accordingly oriented toward crises in private-sector bargaining relationships.
By now, of course, the decline of the private-sector unions' strength is an old story—even if it's riddled with inconsistencies, as organizing is quite successful in certain industries such as health care. The FMCS national caseload data, for example, show a steady decline in "cases involving meetings"—i.e. those in which a mediator's involvement was more than de minimis—from 8,985 in 1976 to 7,151 in 1990. Cases involving work stoppages show a more dramatic decline, from 2,897 in 1979 to a mere 733 in 1990. But during part of the same period, health care cases went up from 1,065 in 1985 to 1,828 in 1990.
I have no desire to retread ground mapped by several authoritative writers, so I'm not going to ruminate on the reasons for the overall decline. But the common response of "blame Ronald Reagan", which implies that changes in US national politics may reverse the trend, seems facile to me. The Economist, for example, reported the rate of unionization from 1980-88 as dropping in the U.S from about 23% to about 17%, a familiar statistic—but also dropping, by similar percentages, in Britain, Italy, Germany, France, Japan and Holland. (In Sweden it went up.) If you're familiar with Charles Heckscher's argument, you'll have additional good reason to doubt whether any likely political change will bring back the private sector unions to a position of real and general strength, at least in their original form.
What's more, even in certain key industries where unions remain strong, the ability to strike has long been recognized as somewhat illusory—the recent US Air strike represents more the exception than the rule. Lately, it seems, more and more unions are looking somewhat enviously over their shoulders at public-sector unions' interest arbitration privileges. Meanwhile, the public sector has become the new bastion of union strength, and union organizing continues to grow; but few jurisdictions face any widespread threat of public-sector strikes on an on-going basis.
Thus it becomes increasingly significant to labor mediators' role that the public doesn't seem to view impasses resulting in interest arbitration as any perceptible threat to the public's interests. My adopted state of Wisconsin, for a ready example, was one of the first and most consistent users of public-sector interest arbitration. The public employers there have made repeated attacks on the statute as a give-away to the unions, and have consistently attempted to enlist the public's well-known antipathy to higher taxes. The statute makes this pretty easy; public hearings are required as a phase of the arbitration proceedings, which provides an obvious opportunity for the employers to make their case. Yet virtually all of these hearings begin and end very quickly: The public just doesn't show up. In effect the public is giving the existence of the entire dispute less attention than it would in a "strike" jurisdiction. Similarly in the private sector, if the current interest arbitration proceeding between the railroads and their unions is settled due to mediation it's unlikely to get the front-page headlines that settlement of the strike would have. Thus may mediators continue to work effectively, yet in increasing obscurity.
The consequences of this trend haven't yet been fully felt: No labor mediation agency, to my knowledge, has been put out of business by even the most financially pressed legislature. But in subtle and not-so-subtle ways, we have been warned of an increasing uncertainty about how important our services really are to the public.
I can offer a few scattershot examples. This year, the Mass. Board of Conciliation and Arbitration, an old-established and competently led agency, literally had to fight for its life after it was "zeroed out" in the governor's proposed budget. FMCS, meanwhile, has gone from a staff of 315 mediators in 1977 to 213 today. And that was not the result of an isolated but well-known "hit" FMCS took in 1982. Seventy-five jobs were cut in that year, but none of those was a mediator. Instead, the larger drop reflects a long slow process of attrition. Most probably, that attrition in turn reflects Congress's knowledge of the caseload facts, particularly a major decline in the volume of mediation requests from the kind of industrially significant bargaining units the agency was established to address (generally measured in terms of units larger than 100 and 500 employees.) And for a more lighthearted example: My own colleagues in Wisconsin discovered last year that the only way they could obtain anything resembling an equitable salary was to redefine themselves as a group primarily composed of....lawyers. That's a sad commentary on the value placed on labor mediators, in an era when attorneys are a dime a dozen and more and more of them would like to define themselves as mediators.
Thus far, the picture that emerges would seem one of irreversible decline. It seems to me, however, that that's the result only if we allow it to be, and that other options still exist. This requires willingness to rethink just what we have to offer to the larger public. Sherlock Holmes, as you probably know, once resolved a case by pursuing the clue of "the dog that did not bark". This kind of exploration has something of the same quality, because it requires reconstructing some avenues of development that have been given lip service, or slighted altogether for one reason or another, and speculating as to which might yet serve a felt public need.
These seem to me to fall into three main categories:
A. Functions which are not specifically mediation but which serve the same underlying purposes for the same parties;
B. Work which is related in kind and subject field to traditional labor mediation, but which was once avoided or overlooked by agencies; and
C. Potential new areas which have little to do with labor and management, but which require similar skills and knowledge and which answer a contemporary and felt public need.
My first category refers, of course, to the newer forms of dispute resolution which labor and management have proven themselves open to, under the general heading of labor-management cooperation. FMCS and other agencies have made substantial investments in this area, which have been widely publicized, and I'm not going to retread that ground. In the context of this discussion, however, some less-publicized aspects of LMC development become relevant.
Just because unions have largely found themselves unable to strike doesn't mean that a new era of mutual respect and affection between employers and employees has broken out. One could argue, in fact, a parallel between labor-management relations and international relations here; where there's animosity combined with relatively equal strength, war (read strike) is a real possibility. But where the same animosity exists and strength is vastly unequal, the weaker side doesn't necessarily give up and lump it. Often enough, it adopts tactics which still constitute defense of its perceived interests or dignity, but which don't give the more powerful side the advantages that it would get in a fixed battle. In its traditional context this is called guerrilla warfare.
We don't really have a name for its equivalent in labor relations. And it's very difficult to quantify its effect on our economy. But responses to perceived tyranny, ranging from passive non-cooperation upwards, are increasingly recognized as a real economic concern. The employee who simply never tells management about a labor- or cost-saving idea she has worked out is a case in point: That person is reacting to real or perceived injustices that she feels she can't address in a more open fashion. Recognition of this kind of employee resistance is now widespread among management, and has contributed mightily to management's adoption of labor-management cooperation. Employee power thus to affect production—or, even more, service quality in an increasingly service-based economy—provides some degree of analogy for the public to accept funding the work. The underlying economic motivation of "industrial efficiency on behalf of third parties", which justified the public paying to avoid strikes, serves to justify this more low-key service also.
I don't intend to stray into a discussion of the organized resistance of those unions that reject LMC on principle on the argument that it constitutes labor shooting itself in the foot. But several other impediments exist to the notion that labor-management cooperation work could reasonably be expected to pick up the slack in traditional mediation. One is that public willingness to pay for these services may in the long run be affected by the fact that there are private sources of the same or analogous functions. Indeed, a plethora of consulting firms and academics promise essentially comparable services, for widely varying fees. So labor mediation agencies don't have any monopoly here.
Also, one fairly substantial argument that has traditionally been advanced to justify publicly funded mediation is that removing the cost factor made it easier for the agency to proffer its services, rather than forcing one of the parties to take the risk of being the one to ask for mediation—rightly or wrongly, a request sometimes thought to indicate the weakness of the requester. Since LMC operates outside of the crisis environment by design, it's not vulnerable to the same concern as to the appearances involved, which militates against making it a free public service. And third, it's obvious that labor relations agencies operating in the private sector are stuck with the fact that some 85% of the private economy is now non-union. Some of what I'm discussing today may seem controversial to some people, but not even I would have the temerity to propose that these agencies start providing LMC services to non-union shops. With the best will in the world, our traditional labor constituency could not stand for that, because it would seem to them a service too vulnerable to being used by employers as a tool to keep unions out.
Finally, among some of us there's a continuing reluctance to take LMC seriously. Within FMCS, for example, one-third of the mediators currently have on-going LMC's, and another third have set up committees that are now operating on their own; some have more than one. But that still leaves a group of the unconvinced. The relative size of the group of diehards probably varies from agency to agency, though there seems to be an upward trend in mediators' acceptance of this role. To a degree, the shift in caseloads towards LMC work may result in agencies needing to take it into account in their hiring, rather than simply assuming that all of their present staff can be persuaded—or coerced—into doing the work. Nevertheless, as a component of change LMC is clearly important, and to the extent that individual mediators are capable and willing switch-hitters, it answers a part of the question. Moreover, dispute systems design, a related function, is becoming more developed and better defined as a sub-discipline. It seems to me to have a natural affinity with several aspects of mediation, such that it may well prove relatively easy to encourage mediators to take it up. At the same time, it has so obvious a parallel to widely-liked concepts of new industrial management that it should be relatively easy to "market".
My second category of possible development involves recognizing that we have acquired a certain degree of expertise in employment matters generally, throughout industry and government alike, and that most of us have barely begun to think of this as a "market" to be developed.
Some years ago I began to be dimly aware that something called "employment law" was being taught in our law and business schools, and that it wasn't labor law. Over time it has come to seem that employment law, and the non-legal resolution of disputes cognizable under it, are starting to edge out traditional labor law in terms of overall caseloads.
Who are the parties in these cases? Well, even though the issues may revolve around patterns of hiring, promotion, working conditions and the like related to race or sex rather than our "traditional" issues, these cases bring into conflict employers, employees and unions.....and the issues raised don't seem to me all that far, conceptually, from discharge for union activity, just cause issues, negotiation of promotion criteria and a host of other problems our colleagues are well used to dealing with. Meanwhile, the attempts of equal rights agencies to establish their own in-house "conciliation" services are hampered both by insufficient staff time and by employers' widespread suspicions of institutional bias. It's very difficult for an agency that's mainly perceived as having an enforcement role to inspire confidence in the kind of confidential discussions that mediation involves.
How far-fetched is it to think in terms of cooperative relationships between equal rights agencies and mediation agencies under those conditions? Not very, I submit—especially if you happen to know that FMCS has already run pilot programs to do just that with both the EEOC and the Department of Labor. Complainants are appalled by the delays, and employers are staggered at the costs, of disputes now mired in legal and administrative proceedings under everything from worker safety laws to ERISA. I submit that there's something to gain for every element of our traditional constituency in our reexamining our former "you go your way and we'll go ours" attitude toward such issues and agencies.
Beyond these potential avenues of development is a bolder step, so far little contemplated. I hold no brief for the capture of services by the public sector generally or by labor mediation agencies in particular. It is and should be a matter of ongoing public debate which of society's functions should be filled by public as opposed to private means. Yet it seems to me that the philosophical arguments between public and private provision of ADR services will get a better hearing, and result in a wiser allocation of the work, if one side doesn't roll over and play dead. So I'm going to argue here that our agencies should at least try to look as if they're interested in solving some of society's non-labor problems.
The argument for these agencies' broadening their functions runs this way: There is increasing interest in mediation of all sorts of disputes throughout our society. Many of these disputes, when not mediated, get very costly attention from the court system or administrative agencies, in rule-making or administrative law proceedings. This is paid for by the public. The public sector, in the broader sense, therefore has an economic stake in efficient and regularized provision of ADR services.
The specific claim to this work on behalf of labor mediation agencies is simply that to get us to carry the load it isn't necessary to set up yet another bureaucracy. For that matter, it isn't even necessary to start a competition with existing ADR agencies, since so few jurisdictions have the kind of widespread coverage that Florida and Massachusetts have developed.
Some of you may think this is a de minimis amount of potential work. It isn't. For example, in 1991 in Florida, there were 17,000 verified court-related mediation cases valued at over $15,000; in other words, excluding divorces and small claims actions. I am told that there is substantial underreporting of this type of mediation case, for complicated reasons, and that the probable actual number of such "civil mediations" was about 30,000 last year. In other words, one state that got up and did something to encourage mediation of civil cases now generates a mediation caseload that substantially exceeds FMCS's entire national caseload.
The argument will undoubtedly be made that the qualifications differ so much that labor mediators couldn't expect to be either competent or acceptable to do much of this work. That question may not be finally settled until a properly controlled, scientifically validated series of job analyses can be run. But the weight of opinion seems to be coming around to the view that other than differences in the substantive knowledge component of mediation (in which training methods are well-established) the other skills and abilities required differ much less from one subject field to the next than was once thought. In the Test Design Project which I head, we have found little objection from experts in several quite different subject fields to the use of substantially the same set of evaluation scales for determining the qualities of potential mediators in those fields. By next year's conference, in fact, we hope to be able to present the result of a painstaking consensus-based examination of these issues. I for one fully expect that the commonality at the core of our profession will be emphasized by that work.
Are the present managers, let alone funders, of our labor mediation agencies ready for an assertion that we should try to develop into general purpose mediation agencies? Not in all cases, certainly. But even in this area, this is not just a theoretical discussion. FMCS has been kind enough to provide me with a compilation of their recent case- and training-load outside labor relations. It makes impressive reading. Their staff have engaged in mediation training or actually mediated in negotiated rulemaking proceedings, commercial, race relations and public policy matters, and other non-labor issues for the Department of Education, the City of Los Angeles, the National Institutes of Health, the Farm Credit Administration, the FBI and on and on. Admittedly, the staff time devoted to these functions is still very small compared with their traditional caseload. But their experience is evidence that it is not fantasy to speak in terms of developing our acceptability in these new markets.
These, then, are some reasons to worry about our future—and three areas of considerable potential. Securing ourselves a future, of course, will require some extra effort. My colleagues on this panel* exemplify the mediators in our field who have already made that effort. I hope that the experiences they can tell you about will inspire others to follow their example.