collective bargaining interventions: contemporary new zealand experiments
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Collective bargaining interventions:contemporary New ZealandexperimentsIan McAndrew aa Department of Management, University of Otago, Dunedin, NewZealandPublished online: 18 Jan 2012.
To cite this article: Ian McAndrew (2012) Collective bargaining interventions: contemporary NewZealand experiments, The International Journal of Human Resource Management, 23:3, 495-510,DOI: 10.1080/09585192.2012.641726
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Collective bargaining interventions: contemporary New Zealandexperiments
Ian McAndrew*
Department of Management, University of Otago, Dunedin, New Zealand
NewZealand has a long history of negotiation assistance to collective bargaining parties,and this paper assesses two contemporary experiments in this tradition. Negotiation ofPolice pay and conditions is assisted by the simultaneous involvement of mediation andarbitration,with thematuration of the negotiation process in recent years seeing a gradualshift in influence from the mediator to the arbitrator. Assistance to other negotiatingparties getting into difficulty is available, where mediation has failed, through anevolving ‘facilitation’ process. Of several approaches tested in the name of ‘facilitation’,conciliation in the New Zealand tradition is assessed as providing the most effectiveassistance to settlement for bargaining parties, while both conciliation and adjudicationapproaches to facilitation can have a more strategic impact on bargaining impasses.
Keywords: ADR; collective bargaining; conciliation; facilitation
Introduction
This paper examines two alternative dispute resolution (ADR) intervention strategies for the
settlement of collective bargaining disputes in New Zealand: a unique integrated
negotiation-mediation-arbitration process employed for adjusting Police pay and
conditions, and a new process of ‘facilitation’ of protracted or acrimonious collective
bargaining disputes by the current employment disputes tribunal, theEmploymentRelations
Authority.
The term ‘ADR’ is used in two senses here. First, these processes assist in resolving
collective bargaining disputes without resort to litigation in the public courts. Second, they
operate as alternatives available on a limited basis and outside the mainstream of dispute
resolution procedures ordinarily available to collective bargaining parties in New Zealand.
The paper begins with a brief review of the relevant literature on dispute resolution in
collective bargaining. Following a short account of the history of industrial dispute
resolution in New Zealand, the paper examines the continuing evolution of the Police
negotiation process and the contributions of mediation and arbitration assistance.
Thereafter, the paper reports the emergence and shaping of the new ‘facilitation’
experiment in providing assistance beyond mediation to parties whose negotiations get
into difficulty. The paper concludes with an analysis of what these New Zealand
experiments contribute to existing theory and practice.
Literature review
In a union-management setting, employee interests have traditionally been pursued in
most Western democracies industrially through collective bargaining, sometimes
ISSN 0958-5192 print/ISSN 1466-4399 online
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*Email: [email protected]
The International Journal of Human Resource Management,
Vol. 23, No. 3, February 2012, 495–510
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supplemented politically through legislation or social partnership agreements. Australia
and New Zealand were notable exceptions, until recently embracing arbitration-based
systems (Issac and Lansbury 2005; Geare and Edgar 2007).
The literature of dispute resolution in collective bargaining has long been dominated
by mediation and conciliation, with the emphasis on assisting parties to reach voluntary
agreements, recognizing the rights of parties to strike and lockout, but with a secondary
emphasis on reducing the need to do so. Much of the theorizing has been around factors
associated with the likelihood of successful resolution, following Kochan and Jick (1978).
Characteristics of the dispute, the parties, the mediator, and the next available impasse
procedure, if any, have all been found to be linked to the likely success of mediation
(Kochan and Jick 1978; Mareschal 2005; Martinez-Pecino, Munduate, Medina, and
Euwema 2008). Kochan and Jick found some limited support for the proposition that
mediation was more effective where arbitration was the next impasse step than when fact
finding was next up.
A distinction between mediation and conciliation is relevant to the present study.
The terms are often used interchangeably in the literature and practice, and have precisely
opposite meanings in some countries than others (Brenninkmeijer, Sprengers, de Roo, and
Jagtenberg 2006, p. 15). In New Zealand, for historical reasons, conciliation denotes a
more active management of the substance of negotiations by the neutral than would
ordinarily be the case in mediation, which tends to be directed more baldly at settlement
through compromise.
Some research has gone beyond mediation and conciliation to examine arbitration and,
to a lesser extent, fact finding. The public sector has been a particular focus in North
America, and especially in the public safety services where there is frequently no right to
strike. Most recently, Kochan, Lipsky, Newhart, and Benson (2010) found that rates of
dependence on arbitration in police and firefighter negotiations in New York State had
declined over time, while the effectiveness of mediation in assisting resolution, both
before and during arbitration, remained consistently high.
There has been less attention to voluntary arbitration, but this process has been
advanced as at least partly meeting the objection to compulsory arbitration: that the parties
lose control of their own dispute (Gennard 2009).
Fact finding involves a neutral third-party inquiring into and reporting on the facts of a
dispute, and often also preparing non-binding recommendations for its resolution. Akin to
‘advisory arbitration’, it carries the conceptual advantage of assisting the parties but
leaving them in control of the dispute. As early as 1946, John Dunlop saw a role for fact
finding in limited circumstances (a threat to the public safety, few and non-technical
issues, and disputes of degree or emphasis, not basic principle). McKelvey (1969)
concluded that fact finding was most likely to be used by inexperienced bargainers and
weak unions, and, like Dunlop, worried that it would become addictive for such parties.
Fact finding is open to a range of approaches. Hebdon (2001) found an adjudicative
style more effective in promoting settlement than an accommodative, mediation style,
with a well-reasoned, principled report offering more potential to bring public pressure to
bear on extreme positions adopted by the parties. Dickinson and Hunnicutt (2005, 2010)
found that fact finders’ recommendations significantly increased voluntary settlements in
bargaining; they reasoned that the recommendations might provide a focal point for future
bargaining that outweighed any ‘risk reduction’ disincentive to settle associated with the
fact finder’s recommendations.
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Background
New Zealand has experimented with dispute resolution techniques in both interests and
rights employment disputes over a long period. In relation to interests disputes, a
compulsory conciliation and contingent arbitration regime was established in 1894, in
parallel with those installed in the Australian colonies, in reaction to the wave of maritime
strikes that shut the Tasman Sea lanes during the decade. In Australia, arbitration quickly
became a wage leader. In New Zealand, however, arbitration was always a contingent, last
resort option, with most negotiated documents settled through conciliation or prior
negotiation (Geare and Edgar 2007, p. 358).
Experimentation in collective bargaining interventions in New Zealand might most
often reference the 90 years of conciliation and arbitration from 1894 to 1984. But when
the New Zealand labor relations landscape changed with globalization and the opening up
of the New Zealand economy in the 1980s, experimentation continued. From 1984,
arbitration of wage claims was now to be available only by consent of all parties, which
meant effectively not at all. Policies were put in place to promote stand-alone collective
bargaining, with only mediation available to assist private sector parties whose bargaining
ran into difficulties. There was some experimentation with arbitration in the state sector in
the late 1980s, but with the one exception of Police, that did not last long.
In particularly difficult circumstances, extraordinary measures were sometimes taken
to short circuit strikes and lockouts. These included government ‘committees of inquiry’
into industrial actions, ‘mediator’s conferences’, or the convening of compulsory
‘ministerial conferences’ where the bargaining parties were commanded by government to
appear before a prominent chair or panel to resolve the dispute, with industrial action
shelved in the meanwhile (Deeks and Boxall 1989, p. 282). Provision for these
extraordinary interventions was withdrawn from statute in 1991.
In other respects too, the landscape moved again with the election of a conservative
government in 1990. New legislation, the Employment Contracts Act 1991 (the ECA)
provided no legislative support at all for collective bargaining. Inevitably, union
membership and collective bargaining coverage declined sharply in the early 1990s,
eventually settling at around 20% in an occupational and sectoral pattern familiar in Anglo
countries (Crawford, Harbridge, and Walsh 2000, p. 294). The Mediation Service was
discontinued. A newly constituted Employment Tribunal was established to play
mediation and adjudication roles, principally in relation to rights disputes. The Tribunal
was authorized to mediate in collective bargaining disputes, but that was very much seen
as a secondary priority as unions and collective bargaining retreated (McAndrew 1995,
p. 40).
In this environment, collective bargaining endured where parties had well-established
and sustainable bargaining relationships that were not dependent on legislative support.
There were several identifiable ‘pockets’ of workers whose collective arrangements
survived the deregulation intact, or even somewhat strengthened, principally workers in
government and corporatized former government departments, in enduring parts of the
manufacturing sector, and in a historically militant sector concentrated in agricultural
processing and transportation that had always practiced enterprise level collective
bargaining and continue to do so.
The legislative and institutional framework shifted yet again in 2000,with the election of
the new Labor government. The Employment Relations Act 2000 (the ERA) re-established
a state Mediation Service, and assigned the Tribunal’s adjudication function to a new
inquisitorial Employment Relations Authority (McAndrew, Morton, and Geare 2004).
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The ERA pronounced ‘positive employment relationships’ as its core objective, trumpeted
collective bargaining as supporting that objective, but provided only limited legislative
support for workers wanting to move into collective bargaining relationships. As a
consequence, while there has been a gradual increase of about 25% in union membership
over the past decade, there has been no significant expansion in coverage of
union-negotiated collective documents (Feinberg-Danieli and Lafferty 2008; Lafferty
and Kiely 2008).
Mediation is the primary mechanism available to assist parties in collective
bargaining difficulties under the ERA. Most mediation interventions are generated by
14-day notices of impending strike action, something that is mandatory in what is a very
broadly cast list of ‘essential industries’. The Employment Relations Authority was
initially granted only limited jurisdiction over collective bargaining, confined to legal
enforcement of bargaining obligations. The two exceptions where the state provides
additional assistance to collective bargaining parties beyond mediation are the subjects of
this paper.
Research methods
Research into the two processes under study was undertaken through semi-structured
interviews with key participants. For the Police negotiations, interviews were conducted
with the lead advocates for the New Zealand Police and the New Zealand Police
Association in collective bargaining from 2003 through 2009. The interviews covered
parties’ strategies in the negotiation, mediation, and arbitration phases of the process, the
evolution of the neutral roles over time, and the value of the process in promoting
settlement and diffusing impasses.
Negotiation assistance through ‘facilitation’ had been provided to 14 collective
bargaining disputes from its inception by statutory amendment in 2004 through the end of
2009. Interviews were conducted with representatives of parties involved in facilitations,
and with the facilitators themselves. In the seven cases in which both parties were
cooperating with the research, the advocates for each side and the facilitator were
interviewed. In the remaining cases, the available party was interviewed, though clearly
with less opportunity for the researcher to validate that party’s interpretation of events. No
representatives were available from the first case which went to facilitation in 2005, and
that case was excluded from the research. Facilitators were not interviewed about specific
cases without the consent of both parties.
In the facilitation interviews, parties were initially asked to background the dispute.
While some context was generally provided in the Authority decision granting access to
facilitation, the rich complexity of personalities, factions, issues, history, finances, and the
like only emerged in the interviews.
Parties were asked the strategies and intentions of both the applicant for facilitation
and the respondent party around the application process and hearing. The facilitator’s
approach was examined, with a particular view to whether the facilitator was inclined
toward a settlement approach or a more adjudicative approach. Parties were also asked to
detail and assess the process that was followed, and their own and the other party’s
strategies during the process. Interviewees were asked how, if at all, the process was
useful, and for their impressions as to why the process was or was not helpful.
The disposition of the dispute following facilitation was also examined. Interviews with
the facilitators covered the same topics from the neutral’s perspective.
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‘Med-arb’ for Police pay disputes
When state workers were pushed to enterprise bargaining in the late 1980s, final offer
arbitration (FOA) was made available for unresolved negotiations (Geare 1988). However,
that option was eliminated in 1991 for all except the Police.
In New Zealand, as elsewhere, strikes by Police are largely seen as inappropriate.
In most Western countries, strikes by Police are unlawful (International Labour
Organisation 2003). In many jurisdictions, alternative procedures are available for
managing Police collective bargaining disputes.
Police pay has been set since the early 1990s in New Zealand by a unique and evolving
process that provides the certainty of an arbitrated outcome if required, but incorporates
features designed to maximize the prospects for a negotiated agreement. The initial decade
of experience of this ‘med-arb’ process is detailed in McAndrew (2003) and need only be
briefly recalled here as a backdrop to recent changes.
Following difficult negotiations between Police management and the Police
Association in 1993–1994, a joint working party devised a ‘Police negotiations
framework’ (PNF) to fit within the statutory FOA provision. The key features of the PNF
were that both a mediator and an arbitrator would observe the negotiations from the outset;
the mediation role would be promoted as the more active one, to some extent conciliating
the negotiations as well as providing mediation intervention when required; and the
arbitrator would be able to issue an interim or draft decision on an FOA-by-package basis
as a stimulus to further negotiations before issuing a final decision if required.
The 1997–1998 negotiations were again difficult, and the process concluded with an
arbitrator’s award adopting the employer’s final package offer and stopping short of the
comprehensive overhaul of the pay structure that the Police Association had been seeking.
By its conclusion, both the mediator and the arbitrator had committed over 20 days to the
process.
Further revisions to the PNF were adopted following the 1997–1998 round.
The interim decision feature was seen as providing useful feedback to the parties as a
stimulus to further bargaining, but at the same time having a ‘chilling’ effect on bargaining
as parties kept their powder dry until the interim decision was tabled. As an effort to
leverage the stimulus value but lose the chilling effect, the PNF was modified to allow
parties to ask the arbitrator to informally indicate her/his ‘thinking’ at any stage of the
process. The interim decision, as such, was to be discontinued. An initial ‘informal
negotiation’ phase in which the parties met directly without either neutral was added as a
further effort to promote settlement over imposition of terms by the arbitrator.
Continuing evolution of the Police pay-fixing system
While arbitration has provided the backstop to the Police pay-fixing system in
New Zealand over the past 20 years, the parties have made extensive efforts to fine-tune
the process to give them every opportunity to reach agreements and avoid the need for
arbitration awards. They have been largely successful in this.
In the time frame covered in McAndrew (2003), from 1991, an arbitration award was
required just once in 1997–1998, while agreements were reached in 1993, 1996, 2000, and
2001 with the assistance of the neutrals. Since that time, an arbitration decision was
required again only once, in 2009, while agreements were reached in 2003, 2006, and
2008.
The 2003 negotiations were the most significant during this period. The parties settled
on a three-year agreement, including the extensive restructuring of the salary scales that
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was not achieved in 1997–1998. Whereas, previously, only salaries and allowances were
included in the formal agreement, 2003 saw the full range of conditions of Police
employment brought into the agreement and thereby rendered subject to arbitration if
needed.
There were a number of developments in terms of the process. The PNF has been left
untouched since the amendments following the 1997–1998 arbitration. There were key
additions of experienced negotiators for the 2003 negotiations, and there has been stability
of negotiating teams since then and a growing maturity of the relationship in terms of a
diminution of personal tension, the acceptance of the validity of each other’s role, the
absence of ‘testing’ one another that characterized the negotiations in earlier years, and a
concomitant ability to focus on issues and make practical deals, rather than getting stalled
on pedantic matters or minutiae.
In 2000, an experienced state mediator was assigned to the arbitration role.
The Employment Tribunal member who had mediated for the parties through the 1990s,
and continued to do so as a state mediator, retired and was replaced in the mediation role
from 2006 by another experienced state mediator, but one seen as having a less directive
mediation style.
In a wide-ranging 2006–2008 review of the Police Act, the government floated the
idea of authorizing limited strike action by Police in exchange for the discontinuance
of the med-arb model. What was contemplated in the proposal was the ability of police to
engage in such initiatives as overtime bans, ticket writing bans, and similar measures
that had been recently witnessed in some Australian states, but stopping well short
of full strikes. While the proposal could only have been floated by a Labor government
accepting of collective bargaining, it was an effort to regain control of the Police pay
budget rather than a move to promote ‘free’ collective bargaining. However, following a
comprehensive report on the alternatives (McAndrew 2006), the Police Association
rejected that proposal and, in the final analysis, the med-arb model came through the
review pretty much intact.
The 2009 negotiations were conditioned by the recent election of a conservative
government, the continuing global recession, a tight budget, and an acute awareness of the
demonstration effect of any Police pay settlement or award for other state employees.
The players were the same as in recent years, except that a different state mediator – again
vastly experienced but new to the Police negotiations – was assigned to the arbitration
role.
The parties proceeded through the informal phase of negotiations without agreement,
and called on the mediator and arbitrator for the formal phase. The mediator attends all
formal bargaining sessions and usually attends associated team caucuses. The arbitrator
attends only joint bargaining sessions. In general, the arbitrator hears the ‘advocacy’ of
negotiations, but not the ‘deal making’. Either party can ask the arbitrator to leave the
room for private discussions between the parties. In fact, any real negotiation involving
prospective compromise, or any exploration that might compromise a party’s eventual
FOA position, is done outside the view of the arbitrator.
A perceived value of having the arbitrator present is that she/he develops an
understanding of the environment and the issues. And the presence of the arbitrator
‘focuses the negotiations’, in the words of one advocate. The parties can jointly ask
the arbitrator for an indication of which way she/he is leaning on the package of issues.
At the same time, the arbitrator is able to indirectly steer the parties by indicating whether
she/he is impressed or not with what is being said in her/his presence. The arbitrator is free
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to ask the parties questions about the issues under negotiation, their positions on the issues,
and the bases for those positions.
The 2009 negotiations began in May. In the midst of the recession, the Police employer
offered no across-the-board increase in salaries. The Association position was 2%
across-the-board. A number of issues were resolved, but there was no movement on pay in
the pre-arbitration bargaining. The association also still had an overtime proposal on the
table.
Toward the end of July, no agreement seemed possible, and the mediator handed the
dispute over to the arbitrator. The Association sensed that the arbitrator could not, having
regard to the criteria set out in statute, award zero. There was no incentive for the
Association to agree to zero. If it was to be zero, it was better to have the arbitrator make
that award. For Police management, too, if it was to be something other than zero, it was
better that the arbitrator makes that decision, rather than the management faces the wrath
of government ministers.
In 1997, the arbitrator sat alone. In 2009, the parties opted instead for an arbitration
panel with two nominees of each party joining the neutral arbitrator on the panel, so that
the arbitrator, involved for the first time in the police negotiations, would have access to
full information, and the parties would have input throughout the arbitral deliberation
process.
The parties presented written submissions and replies to the arbitrator and each other
by late July, early August. With the FOA being on a ‘package’ basis, the Association
withdrew the overtime issue at this stage, not wanting to risk complicating the pay issue,
which it saw as an elegant, stand-alone contest between 2% and nothing.
Following the exchange of submissions, there was a hearing before the arbitration
panel. As required by the governing legislation, the parties were invited by the arbitrator to
modify their FOA positions post-hearing. Police management refined its position to 1% for
12 months, without backdating, so effectively 1% for 14 months, given that two months
had passed since the expiration of the previous agreement. Backdating might have
presented the arbitrator with a more challenging choice between 1% and 2% for a tidy
one-year term.
After receiving the final offers, the arbitrator directed the parties back to mediation for
a last effort at settlement. There was some negotiation, including over the possibility of
reopening the overtime issue, which was worth close to 1%, but ultimately nothing came
of it. The mediator informed the arbitrator, who issued her decision adopting the
Association’s final offer of 2% across-the-board.
Quite apart from the fact that the 2009 negotiations ended in an arbitrated award, there
has clearly been a shift in influence from the mediator to the arbitrator in the Police
negotiations, since the process was last reported on in McAndrew (2003). The Police and
Police Association bargaining teams include experienced negotiators who have developed
confidence to deal with one another directly. The more facilitative style of mediation in
recent years has left the negotiators with more room to make their own calls as the
relationship has matured.
In these circumstances, the arbitration role has assumed more significance.
The experience in collective bargaining of the two most recent arbitrators certainly
helps, and is probably a prerequisite for being effective in influencing the pre-arbitration
negotiations. But, in this process, the arbitrator is seen as more significant principally
because there is ‘juice’ behind the arbitrator’s suggestions and indications – she/he has the
ability to make binding decisions, whereas the mediator does not.
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Facilitation of difficult disputes
Other than for Police, mediation initially remained the only negotiation assistance
available under the ERA to collective bargaining parties who got into difficulty.
This was changed in 2004, when an amendment to the ERA authorized the
Employment Relations Authority to provide ‘facilitation’ of collective bargaining under
defined circumstances (McAndrew 2010). Any party can apply to the Authority for
facilitation on the basis of a serious and sustained breach of good faith in bargaining,
or that bargaining has been ‘unduly protracted’, or that there have been prolonged or
acrimonious strikes or lockouts, or that a strike or lockout has been proposed that would
substantially affect the public interest. Meeting any one of those thresholds in front of an
Authority member will see facilitation provided to the dispute by another member of the
Authority.
Once parties have been referred to facilitation, there is little guidance from the Act as
to what is to happen. The Authority is primarily an inquisitorial adjudication body, dealing
with matters of employment rights as a public forum. However, the Authority is not acting
in its investigative role, with attendant powers, when conducting a facilitation, and
facilitation is – with the exception of the possible public release of recommendations – a
matter private to the parties.
The Authority, having heard from the parties, may make non-binding recommen-
dations about either or both the processes that the parties should follow to reach an
agreement or the terms of the collective agreement that the parties should conclude.
The Authority member may also release the recommendations publicly, or authorize the
parties to do so. Beyond these provisions, the ERA is silent as to how the facilitation is to
proceed.
The origins of facilitation remain something of a mystery. There is no obvious policy
background to its introduction. The fact finding process used in parts of the North
American public sector is its closest model, and it has some antecedents also in the
ministerial and mediator conferences of earlier times, but there is no evidence that these
processes were consciously the model for facilitation. One informed view is that
facilitation was a relatively spontaneous inspiration of ministers and officials seeking to
put some controls around a militant union (and union official) in the health sector where,
ironically, the process has never been invoked.
In any event, the high bars set for qualifying a dispute for facilitation would suggest
that the framers of the facilitation amendment did not anticipate that collective bargaining
disputes would routinely find their way into the process. And indeed, that has been the
case. In June 2010, there were 1761 collective bargaining agreements in existence in
New Zealand, covering 274,500 workers (Blumenfeld and Ryall 2010, p. 18). Between
2004 and 2009, there were just 20 applications for facilitation, and 14 facilitations
conducted by the Employment Relations Authority.
Most successful applications were on the grounds of protracted bargaining. It is clear
that facilitation is seen as a process beyond mediation, and not as a substitute for it. Most
negotiations proceeding to facilitation on the grounds of protracted bargaining, and indeed
on other grounds, had stretched over more than 12 months and had had extensive
mediation assistance.
Next most often cited ground for successful applications was ‘protracted or
acrimonious strikes or lockouts’, often in conjunction with the ‘protracted bargaining’
ground. Pretty much any deliberate interruption of normal work constitutes a strike under
New Zealand law. In a generous array of ‘essential industries’, 14 days notice of strikes
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is required. So every ‘work to rule’ or similar protest constitutes a strike, and in
‘essential industries’ it requires notice. Such actions are quite likely to provoke a
retaliatory lockout by the employer to bring the matter to a head, rather than enduring
‘death by a thousand cuts’.
The application for facilitation
Of the 13 facilitations, six were in the transportation sector, involving bus drivers, airline
pilots, and flight attendants, while five were in primary processing, involving meat
workers, the pulp and paper industry, and food manufacture. There was one facilitation
involving a small state agency and one in the service sector. Each case in which the
employer was the applicant – eight of the 13 cases – could be described as a competitive
negotiation between equally capable parties, and in most there was a background of
low-level industrial action. In four of the five cases in which the union was the applicant
party, the union was in a weak position, representing a small minority of workers in the
workplace, having little industrial muscle, and in three cases looking for a first collective
agreement.
Several themes were evident in the making of applications for facilitation. Where an
applicant party was coming from a position of weakness, mostly union applicants, the
application was usually made out of desperation – there was nothing else left to do. Where
the applicant party saw itself as being in a battle of equals, mostly but not exclusively
employer applicants, the application was seen in more strategic terms, including as an
opportunity for validation of its position for one purpose or another.
Applicants for facilitation were almost always consciously playing to one or more
audiences. The making of an application was seen as demonstrating variously to
employees, union members, employees not in the union, senior management, shareholders
or public funders, or less often the media or the public, that the applicant was making every
effort to resolve the dispute. Sometimes it was seen as a move to attract the attention of
senior figures in the opposing organization. And in seeking validation in the facilitator’s
recommendations, the applicant was again conscious of watching audiences.
For much the same motivations as the applicants, respondent parties usually did not
oppose applications for facilitation.
The facilitation process
There are some commonalities, overlaps, and differences of degree, but basically three
models were emerging in the facilitations conducted through 2009: an (advisory)
adjudication model, a mediation model, and a conciliation model.
There are some process features that are common to all or most of the facilitations
done to date. They begin with a joint organizing meeting, followed by separate briefings,
usually with written submissions. Most facilitators issue draft recommendations for
reaction by the parties. Final recommendations are initially issued privately to the parties,
but are subject to public release on the facilitator’s own initiative or on the application of
one of the parties.
Recommendations have generally been a mix of substance and process. Issuing
substantive recommendations that clearly favor one of the parties runs the risk of having
the other party reject the recommendations, as happened in seven of the 13 cases. In some
others, they were simply ignored. In some instances, however, even the rejected
recommendations played some role in eventual settlement.
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Only one early facilitation followed a strictly adjudication model – there was no effort
at settlement, submissions were received and absorbed quickly, and recommendations
were issued in very short time. The recommendations were substantive in nature,
essentially endorsed the company’s position, attracted some adverse media attention when
released publicly, and were roundly rejected by the union membership.
In eight cases, the facilitator attempted to mediate a settlement. In three of those cases,
the facilitator mediated at length. In some respects, these efforts were equivalent to the
conciliation model noted below, particularly in the emphasis put by the facilitator on
finding agreements on as many issues as possible, and investing considerable time and
energy in that phase of the process before turning to the casting of recommendations to
address remaining issues. The difference is in the employment of predominantly
mediation settlement techniques rather than more directive conciliation techniques.
In the remaining five cases in which a ‘med-arb’ approach was attempted, the
mediation effort was a fairly brief and fruitless one. Mediation by the facilitator seems to
have been short-lived in these cases either because one or both parties had no further
tolerance for mediation and wanted the facilitator to move quickly to recommendations, or
because the nature of the issues made them unsuited to a mediated compromise, or because
the facilitator had nothing more to offer in the way of mediation, and perhaps less, than
skilled mediators had already brought to the dispute. The process followed in these cases
was pretty close to the straight adjudication model.
In four cases, the facilitators consciously adopted a conciliation approach, mostly
keeping the parties together, questioning and challenging them to justify or modify their
positions in front of one another, and trying to tease out agreements in joint session.
In this conciliation model, the facilitator consciously drew on the greater formality of
the facilitation process, and the aura of legal process and gravitas associated with the
Employment Relations Authority, to distinguish the process from mediation, to manage
the negotiations, and to challenge, critique, and cajole the parties in the interests of either
settlement or some level of acceptance. As did some others, these ‘conciliators’
proactively used their ability to issue recommendations to manage the behavior and
expectations of the parties, and showcased their thinking and prospective recommen-
dations to shape the positions of the parties. When recommendations were eventually
issued on unresolved issues, they seldom came as a surprise, having been actively
promoted to the parties during conciliation and as conciliation segued into the pre-
recommendations submission phase, and then the draft recommendations phase.
In most of the facilitations, the strategies of both parties were directed in large part at
‘winning’ the support of the facilitator for their positions on the issues, particularly with a
mind to the facilitator’s recommendations. To some extent this worked at cross purposes
with a facilitator’s efforts to promote settlement through either conciliation or mediation.
Appraisal of the process
In only four of the facilitations studied did the process result in settlement directly and
relatively immediately. In a number of other facilitations, however, the facilitation
intervention was, in one way or another, instrumental in bringing about an eventual
resolution of the dispute. The facilitation process, undefined as it is, can be seen as
functioning in two quite distinct ways. Successful facilitation is seen by some as a process
in which the facilitator has entered the dispute and steered the parties to a settlement, or at
least to the brink of settlement. To others, facilitation is a short, sharp ‘circuit breaker’
designed to resurrect or reinvigorate the negotiations, leaving the process in the parties’
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hands, albeit with one or both parties now having additional tactical chips with which to
bargain.
This second notion of facilitation as a circuit breaker lends itself to the adjudication
approach in which the facilitator moves fairly quickly to size up the issues and deliver
recommendations to the parties, which they can relatively automatically publicize if they
want to. Some effort at mediation may precede the issuing of the recommendations,
although that is not widely appreciated by the bargaining parties. The conciliation
approach, especially in its later stages, can also serve this circuit breaker function.
The alternative notion of facilitation as a settlement-oriented process lends itself best
to the conciliation approach in which the facilitator chairs the negotiations between the
parties, challenging their positions, parking contingent issues, chipping away at secondary
issues, isolating the key ones, soliciting and suggesting solutions, and eventually taking
submissions and issuing recommendations to resolve the remaining issues.
Parties report that facilitation makes a number of contributions to resolution of
collective bargaining disputes, some of which cut across the several approaches noted
above. In most cases facilitation elevated the seriousness of the dispute. The application
for facilitation, bringing in the lawyers to argue the case, and the decision referring the
matter to facilitation all contributed to that. The introduction of a ‘judicial officer’ into the
negotiations, someone statutorily authorized to intervene, capped it off. If the facilitator
also brought personal presence and authority to the proceedings, so much the better. Both
parties, those who experienced it and some who did not, saw the conciliation approach –
‘the investigative, questioning approach, a more searching approach than mediators take’,
as one employer advocate put it – as consistent with and enhancing the elevation of the
seriousness of the dispute that came with the referral to facilitation. This increased
formality and gravitas was credited with getting the attention to the dispute of players
higher in the bargaining organizations, or those behind them. They, in turn, often brought
more settlement authority to the dispute.
The ‘aura’ of the Authority was not always a trump card, however. Experienced
advocates, hardened union veterans, and powerful corporations are unlikely to be
intimidated, and some union officials considered that Authority facilitators were too
remote from the experience of some union members to be effective with them.
The key advantage that the facilitator has over even an experienced mediator is the
power to issue and publicize a report and recommendations. Parties were very conscious of
the audiences that would be influenced by the facilitator’s recommendations, and of the
potential benefits and harms they could do to a party. Much of the criticism of facilitators
taking a simple mediation approach centered on the facilitator making too little use of the
ability to issue recommendations to challenge and move the parties from their positions.
In the words of one union advocate, ‘We were looking for someone to bang heads – theirs
and ours – with more impact than the mediators’.
Again, of course, the right to issue recommendations was not universally intimidating.
A few parties, on both sides of the table, were relaxed about rejecting the facilitator’s
recommendations, and either untroubled by the publicizing of the recommendations or
prepared to ride out any adverse reactions.
Fundamentally, facilitation brings to bear the views of a credible neutral third party on
the issues that divide the bargaining parties, and the value of that was widely
acknowledged. The facilitators can often convey a party’s interests and positions to the
other party with more credibility and persuasion than could the party itself. Of course,
mediators regularly do this too. The difference in facilitation is that the facilitator’s own
assessment of an issue during the conciliation or recommendation-shaping phases of the
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process can also be a powerful tool, introducing a ‘reality check’ for one or both parties.
And the recommendations, even if they do not form the basis for an immediate settlement,
can close down arguments or ambitions on one side or the other, and change the dynamics
of the negotiations, paving the way for agreement down the track.
The right to make and publicize recommendations is not without its problems.
The principal concern expressed by parties – though not by facilitators – was that there
are no statutory criteria to guide the facilitators in making their recommendations. In the
airline industry, for example, pilot or flight attendant rostering issues are lifestyle issues to
the union members, but cost issues to the employer. On what basis is a facilitator to frame
substantive recommendations on such issues?
In the absence of criteria, facilitators’ recommendations are based either on principle,
as the facilitator sees it, or on acceptability, or a combination of both. Recommendations
based on what the facilitator thinks is ‘right’ may well serve the purpose in a ‘circuit
breaking’ adjudication approach, while acceptability would guide a settlement-oriented
mediation approach. However, a conciliation approach appears to require a more
diplomatic balance between what makes principled sense to the parties, and the
acceptability to them of the package of recommendations.
Discussion
What is being experienced in New Zealand is the maturation of one process of collective
bargaining ADR and the gestation of another. To some extent similarities are emerging. As
the parties to Police bargaining have matured in their relationship and taken greater
ownership of the process, the role of mediation has retreated and the key influence where
one is needed is the arbitrator, with her/his authority to issue recommendations. There is a
quasi-conciliation function shared by the mediator and the arbitrator, but increasingly in
the hands of the latter as the one with authority. Only twice in two decades has an
arbitration award actually been required to bring closure to the negotiations.
Experimentation with facilitation has produced a number of models, but the one that
shows most promise of assisting the parties to a settlement is a conciliation process capped
by the issuing of recommendations, with an eye to both principle and acceptability to the
parties. Again, the key influence is the ability of the facilitator to issue and publicize
recommendations.
In both processes, the parties have made reference to the presence and power of the
neutral ‘focusing the negotiations’, influencing the positions and behavior of the parties.
Both the arbitrator and the facilitator practicing conciliation can question and challenge
the parties’ positions, their underlying rationale, and their supporting documents and data
in ways that mediators do not, and that the parties would ordinarily not accept from a
mediator. And both the arbitrator in the Police process and the facilitator – most obviously
but not solely in the conciliation approach – can significantly shape the direction of the
negotiations by showcasing where they may be leaning in terms of prospective decisions
or recommendations as the negotiations progress.
In terms of achieving resolutions to bargaining and doing so without disruption to
service, the police med-arb model is ‘successful’. And the New Zealand experience
endorses other research findings denying a ‘narcotic’ reliance on arbitration, and seeing
the availability of arbitration as enhancing the effectiveness of prior non-coercive
techniques over time (Kochan et al. 2010).
The facilitation process – like its near cousin, fact finding in the North American
context – has a less immediate and dramatic impact on dispute resolution than does the
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availability of binding arbitration. Resolution, if it comes, takes time and is dependent on a
number of factors. And facilitation can contribute in a variety of ways, or not at all,
depending on circumstances.
Kochan and Jick (1978) found the effectiveness of ADR in collective bargaining to
vary with characteristics of the dispute, the parties, and the standing and approach of the
neutral. The results here are similar. Where there was a wide asymmetry in the bargaining
power of the parties, as in a minority union seeking a first contract, facilitation was usually
ineffective. Where arbitration effectively neutralizes power imbalances, a non-binding
process is not able to do that.
Dunlop (1946) reasoned decades ago that fact finding would be most effective where
the issues in dispute were few and easily understood by the public, and matters of
preference rather than principle. The findings here are only partially consistent with that
view. Where the dispute was over ideology or principle, including strident opposition to
unions, facilitation did not settle the dispute.
In terms of numbers, the ideal might be a short, sharp intervention, with just a few
straightforward issues. One or two of the cases examined were of this type and settled
relatively quickly following facilitation. However, most disputes going to facilitation
involved greater complexities than these. A conciliation approach was usually effective in
whittling away significant numbers of issues, working through key issues, and either
settling them or preparing them for ‘no surprise recommendations’.
The ability of the facilitator to fully understand a ‘technical’ issue in the usually short
timeframe of the process was sometimes of concern to parties. There was some inclination
for parties in complex industries, such as the airlines, to seek out the same facilitator, in
recognition of the technical nature of some issues. So issues matter, but the process is
capable of managing more than the simplest disputes. The ability of the public to grasp
the issues was of little concern to most parties, because the general public was rarely the
principal audience.
Strategic use of non-binding processes
The present study partly confirms, contradicts, and adds to earlier findings on the
effectiveness of non-binding ADR processes in collective bargaining.
Non-binding processes have been reasoned to contribute to resolution of collective
bargaining disputes in a number of ways, mostly revolving around the right of the neutral
to issue recommendations. Such recommendations, particularly when based on principle
rather than compromise, are thought to be a source of public pressure on one or both of the
bargaining parties (Dunlop 1946; Hebdon 2001). This does not emerge as a significant
factor in the present study. While the bargaining parties are acutely aware of the potential
impact of the facilitator’s report and recommendations, there is little evidence of concern
for general public reaction to their release.
It may be that ‘public pressure’ as a factor in industrial disputes is overstated, is
confined to public safety services or, perhaps, functions as almost a phantom intermediary.
A public agency with the capacity to front additional funds for bus drivers’ pay may ‘feel’
public pressure over a neutral’s report even though bus passengers pay no attention to the
ins and outs of the issues as long as the buses are running. In many other industries and
occupations, it seems unlikely that the public would be troubled, even if a stoppage did
occur.
A second theme has emphasized the neutral’s recommendations as providing a focal
point for post-intervention bargaining and settlement (Dickinson and Hunnicutt 2005,
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2010). In the present study, the issuing of the facilitator’s report, which effectively ends
the intervention, is often instrumental in further bargaining progress, even though that
further progress may take some time to percolate through and the recommendations are
more likely to point the way forward rather than constituting a settlement point as such.
That the more direct results reported by earlier researchers are not seen here may have to
do with the absence of criteria available to New Zealand facilitators.
On the evidence of the present study, there are two little explored avenues via which
the ability to issue non-binding recommendations can contribute to resolution of
collective bargaining disputes. The first of these involves settlement efforts by the
neutral. There has been some attention in the literature to the impact of non-binding
recommendations on prior mediation effectiveness (Kochan and Jick 1978), but little
attention to settlement efforts by the neutral with the power to issue recommendations.
One exception was Hebdon’s (2001) conclusion that fact finders ought to leave
mediation to the professional mediators, and confine themselves to preparing a principled
report.
The present study endorses the view that there is little value in the neutral engaging in
conventional settlement mediation. On the other hand, significant progress can be made
toward reducing the number of issues on the table and shedding light on those that remain
if the neutral engages in a more directive, inquisitorial style of conciliation beyond
mediation, bringing to bear the formality and gravitas of the process and the office, and the
power to issue and publicize a report and recommendations to move the positions of
the parties.
Second, the strategic use of the neutral’s recommendations to influence audiences
within and proximate to the bargaining parties is a major factor in the contribution of
facilitation to conflict resolution. Concern with influencing the general public is almost a
misdirection play. The target audiences tend to be much closer to home.
Recommendations may be put to work by one or both of the parties in influencing
particular audiences within either their own immediate or extended party, or the other
party’s immediate or extended organization. A recommendation based on ‘right’ can show
that neither a party’s positions nor behaviors are responsible for the breakdown in
negotiations, or that the party’s positions are righteous and worth holding out for, or that
the stance of one or another faction in the management or union organization is clearly out
of line with reasonable thinking, or support other points that might impact the dynamics
within the bargaining organizations, and eventually impact the positions of one or the
other party.
Limitations and future research
This paper confirms the value of the New Zealand Police med-arb model as an effective
process for both guaranteeing closure in negotiations and maintaining industrial peace. It
also supports earlier research that denies the inevitability of a ‘narcotic’ dependence on
arbitration and demonstrates that a well-structured arbitration system can encourage and
usually produce freely negotiated and mediated settlements most of the time.
A process in which the neutral is armed only with the right to make non-binding
recommendations is seen to be effective some of the time, depending on the parties, the
issues, and the approaches adopted by the facilitator. Public pressure associated with
the neutral’s recommendations seems to be a relatively minor factor. The recommendations
provide a focal stimulus to further bargaining and even settlement, but in less direct and
immediate ways than previously seen.
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The neutrals are seen to be most effective in settling issues in the pre-recommendation
stage where a directive conciliation approach is taken. Previous findings that a blunt
settlement-oriented mediation approach is ineffective are confirmed. Finally, the strategic
use of the neutral’s report and recommendations to influence specific audiences in the
bargaining organisations is seen to be a significant factor in facilitation’s contribution to
dispute resolution.
It has to be acknowledged that these findings are based on a limited sample of cases
examined in the context of a process still in its infancy and subject to continuing
development by the facilitators and the client parties, and conducted within the particular
environment of New Zealand. Study of additional cases is warranted, with particular
attention to the theoretical and practical implications of the strategic use of the facilitator’s
report post-intervention to influence the players and the dynamics of the negotiations.
The similarity of the process to the fact finding process used in the North American public
sector suggests value in a more extensive comparative study of collective ADR involving
non-binding recommendations.
Acknowledgements
The author is grateful to the research interviewees for their generous participation and to the IJHRMspecial editors and an anonymous referee for their very helpful comments.
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