Mediator tactics: strategies and behaviors utilized in labor-management negotiations

By: Charles J. Hunt, Jr. I. INTRODUCTION

Mediation in the field of collective bargaining has enjoyed a very long history. Over that time, mediation has benefited from the increased availability of data created by technological advances. Additionally, there has been a shift in topics emphasized in bargaining. Despite these changes, human nature has changed little, and there has, in fact, been little change in the techniques utilized by mediators over the last fifty years. However, there have clearly been efforts to move negotiators away from positional bargaining, also called distributive bargaining, toward an interest-based approach to resolving disputes. (1) This interest-based approach has also been referred to as mutual gains bargaining and "winwin" negotiating. (2) The Federal Mediation and Conciliation Service has created two additional models applicable to particular collective bargaining relationships, Modified Traditional Bargaining and Enhanced Cooperative Negotiation. (3) This Article examines the strategies and behaviors utilized by mediators in the field of labormanagement negotiations in order to effectuate a resolution of conflicts in the process of collective bargaining. It will explore negotiation strategies, behaviors, and considerations that are unique to labor negotiations, that apply to mediations in other fields, and which may have an effect on labor mediator strategy and behavior. This Article will also address the question of whether mediator tactics could be easily varied to accommodate parties who embrace the non-positional approach to dispute resolution, and whether this variance represents a "change" in traditional tactics that mediators have used in positional bargaining disputes. A further goal is to examine, regardless of changes in mediator tactics, the perceived effectiveness of mediation on the resolution of disputes in the field of collective bargaining. The Author will accomplish this by comparing the historical literature in the field with the current literature available. II. BACKGROUND

In the context of this Article, "labor-management relations" refers exclusively to the process by which employees, having organized themselves into a union for the purpose of collectively bargaining the terms and conditions of their employment, engage in "collective bargaining" with their employers. The history of labor-management relations in the United States dates back to the latter part of the Nineteenth Century. (5) Due to the serious impact of work stoppages on the national economy, there have been numerous federal laws enacted which impact both management and labor. (6) Beginning with the Railway Labor Act in 1926, the federal government has passed various statutes up through Title VII of the Civil Service Reform Act in 1978. (7) It is frequently stated in the field of commercial disputes, particularly in Europe, and with respect to civil litigation in the United States, that the concept of mediation, as distinguished from other forms ofalternative dispute resolution such as arbitration or fact-finding, has only recently come into some popularity. (8) However, this is not the case with respect to the field of labor-management relations. As amended in 1934, the Railway Labor Act created the National Mediation Board, which is responsible for mediating contract disputes between carriers covered by the Act. (9) In fact, the federal government's concern with respect to labor-management relations goes back to the establishment of the Department of Labor in 1913. (10) Additionally, Congress passed the National Labor Relations Act ("NLRA"), in 1935, as part of the New Deal agenda of President Franklin Roosevelt's first term. (11) The NLRA encouraged collective bargaining, gave employees the right to organize, and specified certain actions by employers that would constitute unfair labor practices. (12) Further, the Labor-Management Relations Act of 1947 ("Taft-Hartley Act") established the Federal Mediation and Conciliation Service, with the purpose of assisting management and laborers in resolving disputes. (13) Although this Article will not address action at the state level specifically, one should not forget that many states also have an interest in labor disputes, and therefore, have state agencies that engage in mediation efforts when called upon to do so.

III.

MEDIATION

What is this process of "mediation"? In the simplest terms, it is the intervention of a third party into the collective bargaining process for the purpose of impacting an existing dispute between the parties, with a view toward its resolution. (15) A third party is usually sought when the parties have reached a point where they are unable to resolve the dispute themselves, sometimes referred to as an "impasse." (16) The third party is called a mediator, and he or she does not attempt to impose a solution, but works with the parties to assist them in reaching an agreement of their own choosing. (17) The mediator's ability to have an impact is based on his or her perceived neutrality. (18) If one of the parties has doubt about such neutrality, the actions of a mediator are bound to be distrusted. (19) In litigation, or alternative dispute resolution ("ADR") using arbitration, the parties lose control of the process and the outcome; whereas, in mediation, they maintain control of the outcome, but cede the process to the mediator. (20) The actual process that each mediator follows can certainly vary, but a degree of commonality exists. The parties meet with the mediator they have agreed upon, (21) agree to follow a process created by the mediator, and agree to communicate with each other and the mediator in a civilized manner and make a good faith effort to utilize the process to resolve their dispute. (22) "Mediation tactics are the specific behaviors or techniques used by mediators to influence the negotiation process, outcome, or both." (23) IV. CONSIDERATIONS PECULIAR TO LABOR-MANAGEMENT MEDIATION

Although the end goal of a mediator is to narrow differences and resolve disputes in every conflict to which the mediator is asked to use his or her expertise, (24) there are peculiar considerations that exist in labor negotiations. Such considerations include: management apathy and labor distrust, industry peculiarities, diverse economic interests, ethical constraints, and the role of the federal government. A. Management Apathy -- Labor Distrust The foremost consideration is likely the historical antipathy of management to unions, as well as the perception of union members that management will never treat them fairly, nor compensate them reasonably, for their endeavors. (25) These feelings frequently result in extreme bargaining positions with aggressive and antagonist bargaining tactics when a party feels that he, she, or it needs to exhibit strength at the negotiation table. (26) The constituencies of the negotiators thus seem to demand a tough attitude, which creates adherence to the positions advanced, and often minimizes opportunities for the mediator to move the parties to an acceptable compromise and a resolution. (27) Additionally, human nature being what it is, the representatives of the parties maintain an aggressive posture toward each other, frequently resulting in personal antagonisms between the negotiators, (28) and compounding the mediator's task. The nature of labor-management relations is such that the parties can deal with each other for years, or even decades. (29) Therefore, between contract negotiations, there is the problematic task of contract implementation. The attitudes displayed during negotiations can carry on and be the distinguishing hallmark of the contract implementers during the years between negotiations. Thus, personal animosities between the parties can continue and involve management supervisors and company employees at the implementation level. If such is the case when the next round of negotiations starts, the attitudinal makeup of both parties will get off to a bad start. By the same token, recognition of the need to work together after the bargaining is completed can lead to mitigation of antagonistic relations during bargaining. (30) B. Industry Peculiarities Certain industries have employment circumstances that broaden the coverage of the contracts to many personal conditions of the employees. For example, for many years, the Author was involved in labor relations in the steamship industry. In those days, crews of thirty-six to forty-eight people on a ship

involved seven unions. These contracts would cover such things as food, quarters, sleeping time, and even the kind of soap provided. When an impasse is reached in these extensive coverage contracts, mediator expertise requires knowledge of the distinct characteristics of the contract and the industry. C. Clash of Economic Interests In many conflicts outside the industrial relations field, the parties begin with a perceived common interest and only lack the ability to put it together, which requires them to seek a mediator's assistance. (31) On the other hand, there is a view that between an employer and employee, there is a basic conflict of interest. (32) This is born out of the "clash of economic interests between workers seeking high pay and job security and employers pursuing profits." (33) Behind these basics that employees seek, is the motivation that they are members of families and communities. As a result, their workplace behavior is related to their broader responsibilities. (34) A mediator who fails to recognize the needs of the constituencies of the union negotiators will have a difficult time gaining their cooperation and trust during his or her efforts to resolve an impasse. (35) By the same token, it is important for the mediator to articulate and utilize the common interests between employers and employees, such as the benefits to be gained from "increases in productivity through higher wages and higher profits." (36) D. Ethical Constraints Another concern for mediators in labor negotiations is the existence of ethical constraints. (37) In a 1994 article, Raymond Friedman considered an extensive study of labor negotiations, and described what sense professional labor negotiators had about what constituted proper and improper behavior. (38) Friedman's article revealed that negotiators in the field expect their opponents to participate in many negative behaviors, such as hiding information, building false perceptions about their limits and determinations, maintaining "laundry lists" of demands, exaggerating what their constituents will accept, threatening strike activity if necessary, displaying anger, and acting tough in defense of their positions. (39) Despite accepting these behaviors, negotiators will not condone overtly inaccurate statements or lies about factual information, and they expect fewer candors across the bargaining table than in private discussions. (40) The reality is that, in labor negotiations, both deception and honesty can occur, but there is an understanding between professionals as to when each is expected or tolerated. (41) By understanding the ethics involved, a mediator will enable himself or herself to perceive when a party is stepping over the line, and use his or her skills to persuade the party to proceed along another path. (42) E. Role of the Federal Government Also peculiar to labor-management mediation is the role played by the federal government, which enacted both the Railway Labor Act ("RLA") and the Taft Hartley Act of 1947. Since its enactment in 1926, the RLA has governed airline and railroad collective bargaining. (43) Contracts under the RLA do not have fixed expirations dates; rather, they are amendable dates, and remain in effect until a new agreement is reached. (44) The RLA provides a National Mediation Board, and parties are required to follow certain steps regulated by the Board before any strike activity is allowed. (45) In an attempt to regulate the disruption caused by labor strife in other industries affecting commerce, the federal government enacted the Taft-Hartley Act. (46) The Taft-Hartley Act created the Federal Mediation and Conciliation Service ("FMCS"). (47) This independent agency has a cadre of Federal Mediators, who help laborers and management overcome impasses and reach agreements. (48) Mediators, in the arena where Federal government intervention is the norm, such as the transportation field and labor negotiations affecting interstate commerce, are usually specially trained in the peculiarities of government regulations, and the process that governs the parties' efforts to reach agreements. (49) F. Section Summary There are various considerations that are peculiar to collective bargaining in this arena. Because of this, it appears that not only is the knowledge and experience of a mediator important, but also, his or her use of tactics and timing could prove rather different than in other types of conflict resolution situations. It

requires insight and perception as to the parties' history, their present relationship, and how they are reacting to the mediator's style and tactics throughout the mediation sessions. This, perhaps, leads to a further issue of whether the field of mediation in industrial relations conflicts is so distinct from other conflict areas that a specialized form of mediation might be in order. At the very least, we can say that, to maintain the support and confidence of the parties in this special field, it requires a uniquely qualified and trained person. V. OTHER CONSIDERATIONS OF IMPORTANCE

Although not necessarily peculiar to labor-management negotiations, it is of extreme importance to the mediator in this field to consider the tendency of negotiators to approach negotiations from particular perspectives, or with particular methods of negotiation. (50) Other considerations for the mediator include the following questions. What exactly is the motivation driving the parties as they agree to attempt to mediate their conflict? (51) Is the real interest to gain mediator assistance for a resolution or is there a strategic reason to get a third-party at the table, such as leverage in some fashion with the other party? Or, are the parties simply hoping to create an intervention tactic to get a party back to the bargaining table, or to put pressure on a party to bargain in better faith? Assuming that most labor-management bargaining involves a number of individuals with some input on negotiation strategy, it is important for a mediator to ferret out any of these intraorganizational tensions or disagreements that might impact the mediator's tactics. (52) A. The Parties' Methods of Negotiation Generally, it is perceived in today's environment that there are two basic approaches to negotiation-"distributive bargaining" and "integrative bargaining"--or some combination of the two. While distributive, or positional, bargaining is seen as the more historical approach, integrative, or interest-based, bargaining is considered a fairly new kid on the block. (53) Although not necessarily conceived by the authors, the latter concept was certainly popularized in the best-selling book, Getting to Yes, first published in 1981, in which the term "principled negotiation" was used. (54) Distributive bargaining is seen as an approach that seeks to carve up a pie, so that the more one side gets, the less the other ends up with. (55) It is sometimes called "win-lose" or "zero sum" bargaining. (56) For example, in the field of collective bargaining, what labor gains, management loses, such as fringe benefits or wages. (57) "Distributive issues are at the center of the negotiation of a collective bargaining agreement since disagreement over the distribution of labor's product lies at the core of labormanagement relations." (58) This approach is also called "positional bargaining," because the parties each stake out a position and then frequently find it difficult to retreat; thus, the negotiations take on an aura of a power struggle. (59) The exercise of convincing the other side that the power leverage rests with a particular party can involve heated exchanges, which are not conducive to reaching a mutually acceptable agreement. (60) On the other hand, integrative bargaining is a process that looks at the interests of each side, and endeavors to create a solution that results in gains for both sides. (61) Although there are many problems in the workplace that create opportunity for gains by both labor and management, integrative bargaining in this field can be difficult. There always seems to be distributive, as well as integrative, issues involved. (62) Because the tactics and negotiating styles used in distributive bargaining and integrative bargaining are so distinct, it can be difficult to use both effectively in the same negotiation. (63) Traditional negotiations in the labor-management arena have been from a distributive bargaining approach. (64) First, proposals for change are submitted by the union negotiators, and sometimes by management as well. (65) Then, the bargaining proceeds as the parties delineate the importance of their proposals, and ultimately either an agreement is reached or an impasse might lead to a strike or a lockout. (66) These strikes or lockouts are the ultimate use of "power" by one side or the other. (67) It is readily apparent that a mediator must be able to perceive from where the parties are proceeding, and to discern what approach would be most effective in helping them resolve any impasses. (68) To do so, the

mediator must be knowledgeable of both approaches, and able to create a strategy that will secure the cooperation and support of both parties. (69) Researchers and practitioners have suggested that negotiators should move away from the traditional collective bargaining approach and toward an interest-based process. (70) It has also been observed that it is difficult to apply interest-based bargaining in labor-management negotiations because of constituency pressures and the lack of trust. (71) Of course, it is also likely that distributive bargaining is so entrenched that labor and management are suspicious of any effort to move away from that process. Considering the empirical authority regarding the difficulty of making such a move, a mediator would have to be careful about trying to move parties toward an interest-based process without a clear indication of support from the parties. B. The Parties' Motivation for Mediator Intervention In a paper presentation in 2000, Ray Fells, from the University of Western Australia, put forth the concept that there is possibly more than one perspective from which a party might approach mediation. (72) Fells suggested that a definition of mediation, which categorizes it as a process for resolving disputes and reaching agreements, is too narrow. (73) He postulated that a full understanding of a mediator's role should include the parties' motivation in calling for mediation and what they do during the process strategically. (74) He proposed the possibility of "mid-cycle" mediations as well as "end-game" mediations, and that there was a distinction between the two processes, mid-cycle being useful as a tactical opportunity, and end-game as a settlement process. Fells stated: A negotiating party would invoke mid-cycle mediation as a tactical [maneuver] where it believed that a satisfactory settlement can be achieved by other means and particularly by further negotiation. Negotiating parties would approach mediation as an end-game when they believed that the prospects for reaching a satisfactory settlement in any other way to be poor. (75) Not only do the motivations of each party lead to their use of different strategies, but the mediator is also faced with different circumstances and the need to alter his or her own strategies. Where mediation is invoked for the purpose of some strategic goal, there would not be a real interest in settlement, and the party, or parties, would likely engage in further contending conduct. However, if there is an end-game motivation, there would likely be some concession-making in evidence. (76) As discussed later in this Article, mediators adapt their strategies to the nature of the dispute, and unless the mediator is sensitive to the possibility of motivations other than settlement, he or she will not be able to adapt his or her actions to the circumstances presented. (77) Awareness of some midcycle motivation could allow the mediator to take an approach that essentially gets the parties back on course in their own negotiations, and withdraw knowing that he or she had accomplished what was appropriate for the circumstances. (78) Whether this is a facilitative approach or an interventionist approach will probably depend on what tactical considerations the parties are endeavoring to accomplish. (79) C. Intraorganizational Tensions & Disagreements An outsider would ordinarily view collective bargaining as a process between two parties-management and labor. (80) The reality is not always that simple. The makeup of labor unions is such that there can be a number of camps, so to speak, that contribute to the union goals. (81) For example, there may be more than one local camp involved, where there are older workers with different ideas, such as increased pensions, versus younger workers whose main interests are current income. In addition to the negotiators from the local union camp, the national office of the union may send national negotiators, who may have different goals than those of the local negotiators. It is not unusual for workers to have higher expectations of the gains to be had than their negotiators' expectations, leading to strife during the

negotiations if workers are asked to approve what they consider to be an offer inferior to their expectations. (82) On the management side, there can be the corporate officials, whose ideas are different than local management, and human resource managers, whose approaches to negotiations are different than the production managers. Additionally, different employers can have different goals in a multi-employer bargaining unit, and these different views within each camp may result in a lack of authority in the actual negotiators, or at the least, confused signals which impair their ability to actually make decisions without constantly checking back with their constituents. (83) When the parties have insufficient authority at the actual bargaining table, the likelihood of impasse is increased. (84) The following is an example of a severe intraorganizational conflict that occurred between a teachers' union and a school district. (85) As a result of a previous strike, as a new round of bargaining commenced, there was hostility between the school board and the union, and between the board's professional negotiator and the union. (86) Shortly before the commencement of negotiations, the board hired a new superintendent who was appalled at the antagonism between the parties. (87) As a result, the mediator tried for a number of months to bring about better relations by meeting with the union officials. (88) The professional negotiator opposed these activities, and for a number of months, both the mediator and superintendent lobbied the board to side with their respective approaches. (89) Ultimately, the superintendent prevailed, and the board discharged the professional. (90) However, this internal disputeon the management side of the negotiations created havoc and delayed negotiations to the point of impasse and job actions by the union. (91) As a mediator enters into an impasse situation, one of the first things he or she needs to discern is what authority do the people at the bargaining table have to make decisions about resolving an impasse. (92) If he or she finds intraorganizational conflict, the mediator will have to solve that problem before addressing the substantive issues between the negotiators. (93) D. Constituency Expectations of Negotiator Efforts Although the phenomena can certainly exist in negotiations outside of collective bargaining, constituencies, particularly on the union side, can be very suspicious of a "deal" too easily reached. (94) Thus, experienced negotiators in the field can spend an extraordinary amount of time staking out their positions, and ever so slowly, changing them in a choreographed "dance" with the other side. (95) These negotiators frequently know early on whether the deal is likely to be struck, and they know full well that they are expected to put forth their best efforts to get the best deals. However, they rarely rush to get there, because constituents frequently believe this takes time, and any rush to conclusion runs the risk of being seen as having "caved in" to the other side. (96) Also, a mediator may unwittingly step into what is actually a contrived impasse by one or both parties. When this happens, he or she cannot become impatient, and instead must engage in the "dance" until the proper time arrives to "stop the music." (97) When the time comes, he or she and the parties will be perceived as having done the best job possible. (98) E. Section Summary In this Section, we have seen four other considerations that are of importance, although not necessarily unique, to collective bargaining mediation. They represent the methodologies used by the negotiators, party motivation for mediator intervention, the possible effects of intraorganizational relationships on mediator activity, and the mediator's need to understand what the parties believe that their constituents expect in terms of effort. We continue to see the need for unique experience, training, and intellectual insight necessary for a practitioner in labor-management mediation. VI. MEDIATORS

From the book, The Art of Possibility: The calculating self is concerned for its survival in a world of

scarcity. The central self is one of openness and reciprocity as on a level playing field. Since the calculating self is designed to look out after Number One, we are apt to find it in the driver's seat wherever people are at an impasse.... [C]onflict resolution is the art of paving the way for the parties' central selves to take charge of the discussion. In other words[,] the role of the facilitator is to promote human development and transformation[,] rather than find a solution that satisfies [the] demands of the ever-present calculating selves. (99) From R. Lewicki's Think Before You Speak: The objective of the mediator is to help the parties negotiate more effectively. The mediator does not solve the problem or impose a solution. He or she helps the disputing parties to develop the solution themselves and then agree to it. Thus, the mediator takes control of the process, but not the outcome.... The intent is to improve the parties' skills so [that] they will be able to negotiate more effectively. (100) In this Section, we explore what mediators do, how they do it, their strategies and behaviors, their attitudes, their traits, their effectiveness, and what, if any, changes have occurred in these areas over the past fifty years. We will also look at literature of an empirical and philosophical nature. Moreover, we will explore whether mediators in actual practice remain neutral in regard to the issues involved in the mediations and the parties, independent in their practice and not beholden in the future, and free of personal motivations. A. When They Are Needed Obviously, the parties should make every effort to resolve their differences, but if they cannot, the onlyalternative may include the aid of a mediator. A mediator's help may be needed when: - The emotions of the parties are intense [with anger and frustration,] and are preventing a settlement. - Communication between the parties is poor [or has completely broken down] in either quantity or quality[,] [the parties appear to be talking past each other,] and the parties cannot change the situation on their own. - Misperceptions or stereotypes are hindering productive exchanges [and preventing resolution]. - Repetitive negative behaviors are creating barriers[,] [for example, anger or name-calling]. - There are serious disagreements [between the parties] over data--what information is important, how it is to be collected, and how it will be evaluated. - There are multiple issues in dispute[,] and the parties disagree about the order and combination in which they should be addressed. - There are perceived or actual incompatible interests that the parties are having difficulty reconciling. - Perceived or unnecessary value differences divide the parties [as to what is fundamentally right]. - The parties do not have a negotiating procedure, are using the wrong procedure, or are not using a procedure to its best advantage. - The parties are having difficulties starting negotiations or [the negotiations have completely broken down and the parties] have reached an impasse in their bargaining. (101) There are a number of advantages, and at least a couple of disadvantages, in inviting mediator assistance. Some of the advantages of using a mediator are that the parties gain time to cool off, the communication improves as people start listening while in the presence of a third-party, the issues are

prioritized, the relationships are mended, the costs are controlled, the parties gain the ability to learn how to improve future relations, and the parties potentially achieve a resolution. (102) On the other hand, the parties may "lose face" by gaining the image of not being good negotiators, and there is certainly a loss of control in the process. (103) The above-listed factors that can lead parties to seek a mediator are also factors in the degree of likelihood of success. (104) According to some statistics, mediation in all fields proves successful in 60% to 80% of cases, (105) and is most likely successful when the conflict is moderate, emotions are low, parties are highly motivated and are committed to the process, issues are not basic value-related issues, power is fairly equal, and negotiators are experienced. (106) Situations that make it more difficult to attain success are inexperienced negotiators, too many issues which the parties cannot prioritize, a stalemate on the parties' respective positions, or disputes involving strong emotions, intense conflict, differences in major social values, and unreasonable expectations of a fair and reasonable result. (107) Disputes that involve intraorganizational conflicts are also difficult to resolve, and it behooves the mediator to tread lightly in trying to resolve these intraorganizational problems or neither party will accept him or her. (108) Nevertheless, as indicated earlier, it is a consideration that the mediator must be aware of, and which will likely be a stumbling block in addressing the substantive issues between the parties until it is resolved. (109) B. What They Do Mediators, of course, seek to help the parties reach a final settlement. However, if final settlement is not initially reached, the mediator helps the parties whittle away at their differences; thus, closing the gap is progress. (110) Through this progress, mediators "help the parties come clean without prejudice" through caucusing, which is a process that allows the parties to explore, off the record, what would happen if they changed their bargaining positions. (111) Caucusing allows the sharing of confidential information with the mediator, and is a way of preventing the parties from miscalculating in direct discussions. (112) "The mediator also tries to prevent the parties from holding back on concessions they would be willing to make to avoid a strike." (113) Mediators also: bring the parties together[,] establish a constructive ambience for negotiators[,] collect and judiciously communicate selected confidential material[,] help the parties to clarify their values and to derive responsible reservation prices[,] seek joint gains[,] keep negotiations going[,] articulat[e] the rational for agreement[,] establish a working alliance[,] improve the climate between parties[,] address the issues[, and] apply pressure for settlement. (114) The website of the FMCS, referring specifically to the field of collective bargaining, suggests at least ten ways that a mediator can improve the bargaining process. (115) Some are similar to those mentioned above and are more fully explored in that list. (116) The suggestions for improving the bargaining process from the FMCS include: 1. Help establish [ground rules] for the negotiations, and realistic expectations. 2. Help the parties decide what form of negotiation will be most effective.... 3. Help clarify and crystallize issues and differences.... 4. Help the parties define the problem.... 5. Convene and adjourn bargaining sessions and joint meetings.... 6. Help keep the talks moving along, focused[,] and on track. 7. Generate new options.... 8. Help improve communication.... 9. Provide or share information....

10. Handle or help manage relations with the news media. (117) In summary, perhaps, it is fair to say that mediators engage in conflict resolution, and the mediator format for doing so is one of the oldest forms of accomplishing that result. "For instance, in China[,] administrators during the Ming dynasty (1368-1644) actively encouraged village elders--li-lao--to solve petty disputes within the community...." (118) C. Traits of the Successful (119) "The litany of desirable mediator traits often reads like a modified Boy or Girl Scout oath: A good mediator is trustworthy, helpful, friendly, intelligent, funny, knowledgeable about the substantive issues in question, and so on." (120) The most critical trait is that the mediator be acceptable to the parties and have their trust. (121) In this regard, nothing is a substitute for experience as a quality that assists in gaining acceptance. It "is an art that one must learn by trial and error through on-the-job training." (122) Numerous studies indicate that mediators are, seemingly, under pressure in this field to change and learn new approaches in their practices. A national sample of FMCS's "customers" rated their mediators in their most recent mediations quite highly. (123) There was, however, a "pattern of union representatives rating ... mediators more favorably than management representatives." (124) Management representatives indicated that they wanted to see mediators "deepen their knowledge of emerging issues in collective bargaining and labor relations[,] and would like to see the mediators accelerate the use of [interest-based] bargaining techniques." (125) Another study found that management believed that the expertise and impartiality of the mediator increased the likelihood of a settlement, whereas the union believed it was neutrality and persistence that were the most important. (126) D. Some Models They Might Use In an interesting study in 1996, Lawrence Boulle identified four broad models of mediation that included the role of mediation and the consequent strategies that a mediator might adopt. (127) The models are therapeutic or transformative, facilitative, settlement, and evaluative. (128) The therapeutic or transformative strategy focuses on party relationships, and the emphasis is on improvement in their relationships in order to resolve issues. (129) Facilitative is an interest-based approach favored by much of the current literature. (130) It is considered the pure or classic approach, and the perspective is that the mediator merely facilitates the negotiation. (131) In the settlement model, "the objective is to bring the parties to a compromise agreement." (132) Since the mediator has the advantage of knowing where the parties want to go, his or her task is to "persuade" them to agree. (133) He or she might use "pressure tactics," and research tends to support the view that mediators regard the use of pressure tactics as an essential element in their strategic tools. (134) Lastly, in the evaluative approach, the mediator, through his or her expertise, suggests what the outcome might be if it were decided in an adjudicatory manner, and with this input, the parties may move toward agreement. (135) Additionally, what has been called the "adversarial labor management relationship" model was indeed practiced in FMCS mediation efforts, as well as in other labor relations arenas and in other areas of bargaining. (136) In fact, it seemed to work. (137) Obviously this "model" was simply the mediators' efforts to facilitate discussions and resolutions within the framework of the adversarial method of negotiation by the parties. (138) Although still used extensively, even within FMCS, (139) there is certainly support for moving toward an interest-based model, or something in between. As we look below at the techniques utilized, we will see that others have classified the various techniques into strategies that could well be described as "models" similar to those described above. E. Tactics and Techniques They Use 1. Pre-1981 Literature In an extensive literature review completed and published in 1981, (140) and covering some fifty articles ranging over almost thirty years, James A. Wall, Jr. detailed approximately one hundred techniques utilized by mediators. (141) He categorized these techniques by their relationship to a paradigm described in the article. (142) The classification was based upon inter-negotiator relationships, mediator-

negotiator relationships, negotiator-constituency relationships, third-party negotiation system relationships, and mediator-mediator constituency relationships. (143) This categorization resulted from the author's belief that "mediators operate in an arena of complex and interdependent relationships, applying a wide variety of techniques to enhance the effectiveness of intergroup negotiations." (144) One conclusion reached by Wall was that mediation had not been well studied, despite its importance and widespread use, nor was it well understood or refined. (145) Given the number of articles reviewed, the extensive techniques reported on, the recognition by the author of the variety, longevity, and seeming ubiquity of the process, one might raise an eyebrow at such a conclusion. (146) Wall attributes this result to a lack of theoretical analysis, improper organization of the literature, and an absence of research strategies. (147) However, it is not a purpose of this Article to question his analysis, but rather to draw upon the data accumulated regarding mediator techniques. (148) As indicated earlier, the techniques that a mediator uses are certainly impacted by the various circumstances that he or she meets in any particular mediation. (149) The diversity of the various mediation situations will always raise the question of how effective a technique, or medley of techniques, will be in relation to the situation confronted. Thus, it is worthwhile recognizing that the classifications Wall enumerated clearly recognize the various relationships that can exist in a mediation, and a classification of those techniques most likely to be used in a given relationship are of professional interest. (150) Wall's review covered mediation articles beyond just those in the collective bargaining area, but the techniques described are clearly applicable to that field. (151) As Wall stated: "[M]ediators operate in an arena of complex and interdependent relationships, applying a wide variety of techniques to enhance the effectiveness of intergroup negotiations." (152) Thus, an experienced mediator can select the appropriate technique for the particular dispute involved. 2. Post-1981 Literature In Mary McLaughlin's article, Figure 2 shows a set of mediator behaviors including: "reflexive," "facilitating," "maneuvering," and "contextual," classified in a different manner. (153) Reflexive is directed at techniques related to the mediator's rapport with the parties. (154) Facilitating is subdivided into "face saving," "constituency," and "bridging" substantive tactics. (155) This classification addresses tactics directed to the party's relationship. (156) Maneuvering is subdivided into "make suggestions," and "pressing" tactics. (157) Here, the emphasis is focused on the mediator moving the parties forward from a stalled position. (158) Lastly, in the contextual behavior, the mediator attempts to structure the agenda to move forward from a stalled place. (159) In March 1993, Wall, with Ann Lynn, reviewed the literature over the previous decade and "organized and integrated [it] in a framework that focuse[d] on the mediator's decision to mediate, the choice of mediation techniques, the outcomes of mediation, and the determinates of these factors." (160) While the 1981 article by Wall focused on the listing and categorization of techniques, (161) this more recent article updated the research and expanded the investigation suggested in the earlier article for further research. (162) While both articles focused on mediation as practiced in various areas, and not just collective bargaining, it is important to recognize that collective bargaining mediators frequently practice beyond that field, and their practices encompass the strategies and techniques utilized in mediation at large. (163) Wall and Lynn concluded that, over the preceding approximate ten years, there had been a significant advance in mediation. (164) They noted that practice and research had moved quickly, and various publications had enabled practitioners to follow the research. (165) The authors do, however, point out that the complexity and diversity of the studies by a variety of disciplines made it difficult to compare all the aspects of the mediation practices. (166) The literature does not appear to add to the list of the approximate one hundred techniques previously discussed, but focused more on discriminate classifications related to the circumstances in which certain techniques are most effectively utilized. (167) With a focus on historical change, the main advancement appears to be that mediators, assisted by research studies, have become more adept at knowing when to use certain techniques. (168) The Wall and Lynn article explores extensively what governs the mediator's choice. (169) For labor mediators, we find that the rules and standards of the FMCS (170) and the American Arbitration

Association (171) are important. Another factor involves the common ground that exists between the parties and a concern for the outcome expected by them. (172) Also, the characteristics of the disputeare relevant factors in a mediator's technique choice. (173) Other factors include culture, mediator training, ideology, as well as mediation context, which varies from field to field. (174) E. Their Effectiveness It would be a mistake to measure mediator effectiveness merely by the number of mediations that result in resolutions of particular disputes. Even if a matter is not resolved, the mediation process can have beneficial results, such as narrowing the issues, which results in a subsequent resolution by the parties. (175) It has been postulated that mediation is as much a prevention measure as one of resolution; that is, it helps prevent future conflicts. (176) Some researchers have felt that the "effects of mediation ... on the settlement of the disputes are somewhat ambiguous." (177) Researchers "estimate [that] the median settlement rate ... is about 60% [over all fields], with a range between 20% to 80%." (178) Regardless of whether this is considered somewhat low, it is good to remember the usefulness of mediation in the prevention of conflicts, as mentioned above. The FMCS, in its 1997 customer satisfaction survey, found that mediation led to an agreement in 46% of cases involving an FMCS mediator, and in another 35% of cases, the parties were brought closer together. (179) Thus, in labor-management cases involving the FMCS covered by that survey, there appeared to be a commendable success rate. Additionally, a success rate of 93.4% was reported during a three-year period ending in 2001, with an average of 5,275 cases per year in which FMCS mediators were involved, using traditional negotiation strategies based essentially on the adversarial model previously described. (180) Certainly, in the field of collective bargaining, the attention paid by both the federal government, as well as state government agencies, to assist in the resolution of disputes that would have an impact on the economy has resulted in a formalized training of state and federal mediators geared toward this field. Therefore, it is not surprising that the formalization of these efforts produces the most data on results. The available data would suggest that resolution results in the labor-management field of mediation have been very successful, and probably better than the overall statistics for the general field of mediation in other areas. We are reminded that mediation efforts in the United States in collective bargaining go back much further in time than efforts in litigation, family crisis, and so on. (181) F. The Broadening of Choices The world of mediation over the past thirty years has seen an increased movement away from the adversarial, or positional, theory of bargaining and mediation toward a format with the goal that both parties should benefit from any bargain. (182) Therefore, it behooves the parties to appreciate and give credence to each other's interests. Called by a number of names, win-win, interest-based, non-positional, and so on, the theory was explored within the FMCS, and was still being explored and reported in a 2002 article. (183) Notwithstanding the successful experience in the adversarial model reported above, there existed a sense that there was increasing tension and a deterioration of labor-management relations, because of a failure to address many problems either at the bargaining table or during the terms of the contracts. (184) As a result, the FMCS began to devise new strategies to help facilitate better relationships. For example, the FMCS established Labor-Management Committees to function in between bargaining times. (185) The FMCS also created Interest-Based Bargaining ("IBB"), based upon various theories put forth by authors over a period of some thirty years. (186) From there, the FMCS established a process called Modified Traditional Bargaining, which is a process that seemingly allows movement between the traditional adversarial model and IBB. (187) Lastly, finding situations that did not neatly fit any of these models lead to what is called Enhanced Cooperative Negotiation, which also operated between traditional bargaining and IBB, but on a more simplified basis. (188)

The results, at least in those disputes served by trained FMCS mediators, are a continuum of models to draw upon as the nature of the disputes unfolds. It is probably fair to say that the FMCS is a leader in the field of collective bargaining dispute resolution, and what they do successfully will find its way into other venues. G. Section Summary Our exploration of when mediators are needed, what they do, how they do it, and their degree of success clearly suggests the complexity of this art and the continuing need for research, training, and feedback from the practitioners. Particularly in the labor-management field, we see the need for a mediator trained in the art, skilled in dealing with the peculiarities of the collective-bargaining arena, and knowledgeable about labor-management law and practice. VII. CONCLUSION

With respect to the starting theory that there has been little difference in the techniques utilized by mediators over the past fifty years, the literature would appear to support that view, provided we simply look at the technique descriptions. However, to do only that would fail to recognize changes that have occurred in collective bargaining mediations in the form of a movement from traditional hard bargaining (distributive) toward a more interest-based approach (integrative), as well as the various models in between. It would also fail to recognize that mediators seem to have become more sophisticated in their use of techniques, and are able to allocate techniques into various models in which the techniques are applied to the particular circumstances they find in the mediation setting. Additionally, we have found that the process itself has become more ingrained in the field, and the parties themselves seem to have gained more of an understanding of how to utilize mediation in its various modes. This is not to say that there is now firmly established a new method acceptable to all, but there are clearly a variety of approaches that can be utilized depending on the propensities of the parties and the expertise of the mediator. It would seem that the research supports only a very narrow interpretation of the theory that mediator techniques have gone nearly unchanged. However, a better way to look at the results is that there has been progress in the mediation field, and that the area of mediation in labormanagement relations is a continuing and evolving process. We have also seen that there are peculiarities that exist with respect to collective bargaining, as well as party attitudes and motivations, that a skilled mediator must be aware of in this field. Finally, the literature suggests that mediation has made a significant positive impact on the resolution of labor management disputes, such as in many cases avoiding labor stoppages, and in other instances, impacting the time of a stoppage.