A win-win approach to dispute resolution
Law enforcement agencies, like private businesses, are constantly faced with labor-relations issues involving conflicts between management, employees and unions. To address such conflicts, there are several forms of dispute resolution, the most common of which are mediation, arbitration, settlement negotiations, conciliation, fact-finding sessions, and litigation.
Statistics provided by the Chicago Police Department’s Management and Labor Affairs Section indicate that disputes and conflicts within the department are predominantly settled through the grievance-arbitration process or local courts. Both methods are costly, time-consuming, and foster mistrust between the parties. Mediation is a more cost- and time-efficient method of resolving disputes and, if used appropriately, would improve relationships between management and labor and, at the same time, enhance the effectiveness of the disciplinary process.
An Old Friend
Mediation, described as “facilitated negotiation,” is one of the oldest forms of dispute resolution. Historically, many religious communities have used mediation as one of the primary forms of dispute resolution, and it has also been widely applied in commercial settings as well. Simply put, mediation is an informal, non-adversarial process in which a neutral third party assists in the resolution of a dispute.
The mediator’s function is to help the parties in identifying issues, encourage joint problem-solving, and explore settlement alternatives. A mediator is not a decision-maker; decision-making rests with the disputing parties to reach a mutually acceptable agreement on all or some of the issues in dispute. The mediation process allows the parties to arrive at their own solutions which are custom-tailored to their individual situations. For the process to be effective, however, the parties must be willing participants.
Mediation does not set precedents, does not punish cheaters or lawbreakers, does not equalize the bargaining power between participants and is completely confidential. Mediation is quick, cost-efficient and informal.
There are two types of mediation: information-centered mediation, for issues requiring a particular expertise, and process-centered mediation, in which the mediator may know little or nothing about the subject in dispute. For information-centered mediation, the choice of mediator is dictated by his or her perceived subject-matter expertise. Conversely, the process-centered mediator is skilled at resolving disputes and has expertise in the process of dispute resolution rather than the specific subject matter at issue. Given the nature of law enforcement, process-centered mediation would be appropriate for resolving most, if not all, issues in dispute. There is virtually no area of law enforcement that is so technical as to require information-centered mediation.
Management vs. Labor
In management-labor relationships, particularly those where collective bargaining agreements exist, the most common methods of resolving conflicts are negotiation and grievance-arbitration. Typically, collective bargaining agreements contain a grievance procedure that ends in final and binding arbitration; only 4 percent include mediation as a step prior to arbitration. Currently, mediation between the Chicago Police Department and Fraternal Order of Police is limited to medical-related issues which generally involve disputes regarding payment of a claim or whether an injury should be classified as duty-related. According to Police Department statistics, approximately 100 disciplinary cases are processed through grievance arbitration annually, at a cost to the city of approximately $75,000. An additional 360 cases per year are part of the medical mediation process, at a cost of approximately $7,200, which is divided between the city and the union. The proportionate difference in cost between mediation and arbitration is overwhelming.
In theory, if not in practice, the relationship between the union and the Police Department is generally viewed as adversarial due to what are perceived as conflicting interests Conflict situations have but one of two possible outcomes: You win or you lose. This strategy involves each party going all out to achieve its objective at the expense of the other party. The outcome in “win-lose” situations perpetuates mistrust, alienation, mutually negative perceptions and polarization. Relationships either remain poor or deteriorate even further.
Resolving to Resolve
Since a dispute resolved through mediation allows both parties to “win” and benefits their long-term relationship, mediation would be an invaluable alternative means of resolving disputes during the life of a collective-bargaining agreement, and should be included as a voluntary, formal step in the grievance procedure. Information reported in the Arbitration Journal shows that the time and cost savings of mediation, combined with its success rate, make it a viable alternative to arbitration. As a bonus, the mediation process lends itself to the disputants developing improved problem-solving skills.
It is estimated that mediation saved 19-25 hours of preparation and reduces the average cost per case by approximately 50 percent, since an arbitrator’s administrative costs and fees are eliminated. In addition, mediation allows for: the settlement decision to remain with the parties; the dispute to be analyzed and the underlying problem dealt with; open communication between management and labor, and a process that provides, when necessary, an unbiased, third-party opinion on a non-binding basis.
Roadblocks and Barriers
Fear of the unknown is an obstacle inhibiting acceptance of mediation as an acceptable form of dispute resolution in the police community. Arbitration is a known procedure, whereas mediation is not as widely utilized. Arbitration also fits more neatly into the bureaucratic structure of management-labor relations. For example, arbitration has well established rules and procedures, and there is one of three possible outcomes: The grievance will be sustained, denied or split. In arbitration, precise records can be kept of win/lose rates and the number of times an arbitrator decides in favor of management or the union.
Mediation, on the other hand, is a fluid process with few rules. Outcome is unpredictable because an issue may expand or contract during discussion and the range of possible settlements is great. Since grievances are resolved by compromise, no clear-cut winner emerges and it is difficult, if not impossible, to keep score.
Mediation shifts the focus of a dispute from adversarial problem-solving to cooperative conflict management. This requires a department from the age-old ideology that management and labor have diametrically opposing or conflicting interests. Management usually takes a hard-nosed stance to avoid the appearance of “giving away the shop.” On the other hand, unions are political organizations and union leaders often take unyielding positions because they think this is what their members want. Collaboration can be viewed as compromise, and in some labor-management relationships, compromise is seen as defeat.
Since mediation requires the union to work out a solution with management and acknowledge ownership of settlement agreements, there can be no passing the buck or laying blame elsewhere for an unpopular decision. In arbitration, the parties present the best possible arguments to the arbitrator and then rest their cases. An unfavorable decision or denial of the union’s grievance can be blamed on the arbitrator who, after all, made the decision.
Before attempting to mediate workplace disputes, both labor and management must be trained in the skills and philosophy of mediation. Each side must understand how to be advocates and work through issues collaboratively. Mediation training develops new skills, but more importantly, it provides a new orientation wherein confrontation is replaced with cooperation, underlying interests are asserted, instead of positions, and disagreements are depersonalized. Instead of focusing on “winning all,” and viewing each dispute as a unique grievance, training should include approaches to conflict resolution that allow for flexibility in determining the outcome of a problem.
If management and union representatives are not properly trained to focus on interests, rather than positions, they will resort to position-taking, thereby rendering interest-based problem-solving impossible. The parties must learn to intellectually distinguish the problem (interests) from the contract (rights), and temporarily suspend the impulse to exercise rights in order to honestly and creatively explore interests. Successful mediation depends on the parties’ attitudes and problem-solving skills.
Notwithstanding any stated concerns, the benefits of mediation still clearly outweigh possible risks. The benefits of mediation in terms of time and cost savings are strengthened by the fact that the process provides its key players with problem-solving skills that may translate into a future positive attitude toward collaboration. Research on mediation reveals high settlement rates and fewer cases going to arbitration.
Unions should adopt voluntary mediation as a step prior to arbitration in their grievance procedure. Voluntary mediation is desirable because in a unionized workplace, management and employee representatives should have the right to refuse to mediate a dispute and parties must enter the mediation process with an open mind and a desire to willingly resolve the issue separating them. Either party should have the right to request mediation, but both sides must agree to the process. If parties are forced to mediate, the process probably will not succeed. If both parties can be convinced that mediation poses no more risk to their situation than already exists, and that they will not be any worse off, they are more likely to agree to attempt to resolve disputes through mediation.
Obviously, not all disputes are appropriate for mediation. The ability to resolve a dispute through mediation depends more on the attitudes of the parties than on the issues in dispute. For mediation to work, both parties must be prepared to discuss issues rather than positions, each should have the authority to settle. The success or failure of mediation is dependent upon the players and how they play.
Every grievance settled through mediation builds a foundation for future collaboration and trust. Success with grievance mediation can lead to a better overall labor-management relationship, which spills over into future collective-bargaining relationships. The time and cost efficiency aspects of mediation, coupled with management and labor’s collaborative, creative problem-solving efforts, could make mediation the cornerstone of 21st century dispute resolution in the policing community.
(Dorothy M. Steward, a 23-year veteran of the Chicago Police Department, has been Department Advocate in the Internal Affairs Division since 1992. She holds a master’s degree in public administration and is currently working toward a second master’s in industrial relations.)
Getting the word out about sexual predators
In the effort to protect the citizens of our state, particularly our young children, the Florida Department of Law Enforcement has placed a high priority on strengthening Florida’s sexual predator law. The most recent changes in the law, however, have created some confusion among the press and public.
Among the significant changes brought about by this new legislation are the requirements that sexual predator designation must be made by a written court finding, and that when such a finding is made by the court, law enforcement must aggressively notify the public of the presence of the predator in their community. However, the law is very specific in its definition of a sexual predator: The offender must be convicted of certain designated crimes, committed on or after a specified date, in order to be declared a sexual predator. The public should also understand that not all sexual offenders will be registered. In fact, many serious offenders are not covered by this law because their crimes were committed before Oct. 1, 1993.
As part of our aggressive approach to this issue, the FDLE in May of this year compiled and distributed a sexual predators document as an investigative tool for law enforcement, correctional officials and prosecutors throughout our state. Because of Florida’s public records law, the list has been made available to any person who has requested it. This original document includes convicted, registered sexual predators under Florida law on the date the list was published.
On July 1, when portions of the new law took effect, the FDLE removed from the predator file all offenders who did not have the newly required judicial finding. The FDLE has been very proactive in working with state attorneys to follow up on the remainder of the 317 criminals previously registered to seek the court designation required by the new legislation to place them back in the sexual predator file.
FDLE recently took another step to provide immediate and free access to Florida’s growing sexual predator list. This information is available on the Internet through FDLE’s home page: http://www.fdle.state.fl.us.
In addition, the department is currently working with local law enforcement representatives and prosecutors to develop the protocols that will provide guidelines for public notification. How these are put into place in individual communities will remain a local decision.
FDLE will continue to work within the framework of the law to ensure that all appropriate information about sexual predators is accurate and widely accessible to the law enforcement community as well as to the general public. Let this be clear: Our effort is to maximize to the fullest the distribution of the identities of these predatory criminals with the intent of protecting our children and the public at large from being damaged and violated.
(James T. Moore is Commissioner of the Florida Department of Law Enforcement.)