Bargaining Table Impasse: Is It Time to Call in a Third Party?

Joel Gerring

By Joel Gerring, MASB Assistant Legal Counsel

DashBoard, Jan. 25, 2017

Times are difficult on both sides of the bargaining table. With little money to spend, districts are generally offering little in terms of teacher wage increases. Meanwhile, teachers have been seeing their wages suppressed for years and are becoming more and more disillusioned; often directing their frustrations at an increasingly cash-strapped administration. The result can often be gridlock at the bargaining table.

If your district is headed toward, or has already reached, a negotiation stalemate, bringing in an objective third party is the next logical step. Either party (or both parties jointly) can request that the Michigan Employment Relations Commission appoint a mediator to meet with the parties and attempt to bring them to a resolution. There is no fee to either party for this state-sanctioned service, which can last only one evening, or sometimes extend over a few separate sessions.

A mediator’s role is to help the parties reach an agreement by, essentially, bringing them closer to a middle ground. During mediation, the two bargaining teams are generally separated from each other while the mediator moves between their rooms, carrying offers and messages, speaking frankly about each relative position and prompting conciliation. What goes on during mediation is confidential, therefore parties are encouraged to get creative with proposals without feeling as though they will be bound by any suggestion or offer that is made. Ideas can be shared via the mediator, without the risk that a current “official” offer has been affected. Mediators will often take it upon themselves to suggest various informal recommendations, which both sides are free to consider, modify, reject or accept. In the end, if mediation does not result in any meaningful progress, neither party is necessarily worse off, as direct bargaining simply begins again, from where it left off.

The usual next step after a failed mediation session is fact finding. Much like mediation, either party can request that MERC schedule a fact-finding proceeding and appoint a fact finder to preside (with input from both sides). Unlike mediation, a fact-finding session is more akin to a formal court proceeding, with each side taking turns at making an argument, presenting exhibits and perhaps even preparing witnesses. These proceedings can take a day or more to complete. Afterward, parties are often provided additional time to prepare a brief that summarizes their main arguments while rebutting those of the opposing group.

Some weeks, or even months later, the fact finder will issue a nonbinding, written recommendation that may incorporate portions of either party’s requested relief, or suggest another outcome entirely. While neither side is bound by the fact finder’s recommendation, it is a public document and is therefore often used to sway public opinion. If the fact finder’s opinion is not adopted by the parties in order to resolve the impasse, they must continue to bargain for 60 more days, after which a district is lawfully allowed to simply implement a contract.

If you’d like to know more about third-party intervention as it relates to contract negotiation, be aware that MASB’s Legal and Labor Team will be covering the topic, in some detail, during our upcoming Labor Relations Conference on Feb. 24, 2017, in Lansing. We will be conducting a one-hour breakout session aimed at providing you with a solid understanding of the mediation and fact-finding process, along with the various considerations and concerns that accompany the process. 

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