Ask A Negotiation Expert: Federal Mediation Comes Out of the Shadows

By PON Staffon / Mediation

U.S. federal mediators often work on the front lines of high-profile labor-management disputes, yet—aiming for neutrality and confidentiality—tend to keep a low profile themselves. We spoke to Federal Mediation and Conciliation Service (FMCS) principal deputy director Gary Hattal about how the FMCS, which was founded in 1947, strives to meet its mission of promoting effective collective-bargaining negotiations and ending work stoppages.

Negotiation Briefings: How does the FMCS help organizations with their labor-management negotiations and disputes?

Gary Hattal: Traditionally, we’ve worked on dispute resolution, specifically impasse in labor negotiations, where the parties are having difficulty working collaboratively. As a confidential, neutral organization, we are able to work with the parties in an objective way, filter out the potential for vitriol or animus, and help them reach an agreement and avoid a strike or lockout.

Both sides in a labor-management dispute need to realize that outside competitors are their real competition, not each other. Our mediators can help employees understand the financial constraints faced by their organizations. At the same time, management has to understand that if they have fair work rules from a union perspective, and good rapport and enthusiasm, then there can be a meeting of the minds.

NB: How does FMCS determine which disputes or negotiations to get involved in?

GH: Our case-tracking system keeps our mediators informed about when labor contracts are expiring, and we let the organizations know we’re available to help. In addition, parties we’ve worked with in the past often approach us for help with another situation. If we have competing requests for our time, we look at the importance of the situation and its urgency—that is, if there’s a limited period in which to help resolve a dispute. We train our mediators to determine the appropriate time to get involved. It’s rarely when the contract is wide open and more often when it has narrowed. We move our people around the country based on their past experience in particular industries.

NB: Do FMCS mediators follow a particular philosophy or approach to mediating disputes?

GH: Our particular philosophy and approach begins with neutrality, followed closely by confidentiality. We have to make sure the organization understands that we will focus on the mediation process, not on their particular proposal. During private caucuses with labor or management, we can offer new approaches for reframing issues, but that is always voluntary. If someone says, “Help me make the other side understand my priorities,” they can rest assured that we will do so confidentially.

In particular, we train our mediators to be versatile. Some organizations require a more directive approach: “These are the repercussions of impasse, so let me make a suggestion.” Some require a facilitative approach, which involves asking open-ended questions to help parties come up with their own solutions. And, in some cases, transformative mediation—where mediators need to help parties build trust and address other problems in the relationship—is required. Our mediators are trained in all three approaches. They choose which one to use based on which seems most needed and based on their past experience with the organization.

NB: Can you briefly describe the role of FMCS in resolving a labor-management conflict we may have read about in the news?

GH: Because of our need for confidentiality, I can’t get into specifics. But in the sports industry, for example, we are involved with or soon to be involved with various professional teams engaged in collective bargaining. We sit in the shadows and make ourselves available to each side. The same is true in the auto industry, the health-care industry, and others. While FMCS may not be involved in every labor- management dispute, we are ready, willing, and able to jump in when needed because we’ve monitored the situation. Our mediators often do research on the organization, its history with the union, past strikes, and even the personalities involved.

NB: You personally have experience in “preventative mediation.” Can you tell us about its purpose and what it entails?

GH: When I joined FMCS years ago, some of my mentors got involved in looking at ways to prevent disputes rather than waiting for them to blow up. We identified tools and training, such as interest-based bargaining, relationship building, and trust enhancement, that people could use so that they might never need to get to mediation. Through labor-management committees, outreach, and training, people learn how to facilitate for themselves. Progress comes not from shying away from conflict but from managing it.