Impasses and Their Resolution

1
Impasses and Their Resolution

• What is an impasse?
• Third party interventions for resolving impasses

2
Impasses Defined

• When parties are unable to move further toward
  settlement, i.e. theyre stuck neither side is
  willing to make a concession
• Two possibilities
• Non-overlapping (negative) settlement range
• Poor communication
• What can be done?
• Parties can apply negotiation skills to resolve
• They can call in a third party for help

3
Common Third Party Interventions

• Mediation
• Fact-finding
• Without recommendations
• With recommendations
• Arbitration (interest arbitration)
• Conventional interest arbitration
• Final Offer Selection (FOS, a.k.a. sudden
  death)
• Med-Arb Mediator switches at some point (hybrid)
• Note Mostly used on a voluntary basis, but laws
  also require in some instances (e.g., public
  sector, national emergency disputes, RLA, postal
  service)

4
Mediation

• Mediator assists parties in reaching agreement
• Who? Typically professionals from FMCS or
  similar state agency, but can be anybody the
  parties choose (stress on acceptability)
  Scout qualities noted earlier are desirable
  Also emphasis on sense of timing
• Important in caucuses, not just at negotiating
  table
• Styles vary, e.g., with parties experience level
• Illustrative range of mediator behaviors

Low intervention
High intervention
Schedule meetings
Procedural suggestions
Facilitate discussion
Messenger
Gatekeeper
Substantive proposals
5
Interest-Based Mediation

• Recall that interest-based bargaining is
  essentially the same as integrative bargaining,
  with stress on problem-solving, exploiting
  possibilities for mutual gains (win-win), etc.
  Stress on interests rather than positions
• Mediator roles differ for this approach More of
  a facilitator, coach, teacher (see example in
  Buckinghams descripton)
• When does it work?
• When other elements of a cooperative relation are
  already in place, i.e., where trust is high,
  experience is favorable, or
• Adverse consequences stem from failing to resolve
  mutual problems, i.e, incentives to work out
  problems are high
• Buckingham Success with interest-based approach
  can help with distributive issues too -- it
  carries over

6
Fact Finding

• Objectives
• Discover parties positions clarify them
• Possibly publicize them
• Possibly make recommendations
• Theories
• Parties may not be communicating clearly --
  disagreement may be simply a misunderstanding
• Publicity may shame the unreasonable to change
• Report or recommendations may guide others
• Reality Not used much. Disagreements are real,
  public often doesnt care or understand

7
Arbitration (Conventional Interest Arbitration)

• Decides terms of the agreement
• Used rarely in U.S. outside public sector
• Why not? Reasons for lack of use
• Parties are reluctant to trust outsiders with
  complex agreements theyll live with
• Costs Arbitrators typically get 300-500 per
  day
• Public policy doesnt encourage. Why not?
• Contrary to voluntarism
• Parties will lack commitment to imposed
  agreements
• Chilling effect on bargaining Discourages
  genuine give and take, knowing strike costs wont
  have to be faced upon disagreement
• Either side may feel they can do better via old
  fashioned method

8
Interest Arbitration Two Basic Approaches

• Mediation-Arbitration
• Seeing interest arbitration as an extension of
  CB, arbitrator tries to fashion an award
  (decision) acceptable to the parties
• Arbitration proceeding can be a forum for
  continued negotiation
• More of an interactive process among parties and
  arbitrator
• Analogous to clinical approach in grievance
  handling

• Judicial Decision- Making
• Arbitrator is more of a specialized judge
• View is that the parties had their chance to
  reach agreement now its time for a decision
• Thats why they hired the arbitrator!
• Risk of unacceptable or suboptimal decision is
  part of the parties costs of failing to agree
  (King Solomon?)
• Not to say that acceptability is ignored
  completely

9
FOS Arbitration Final Offer Selection (a.k.a.
Sudden Death)

• Expressly designed to counter chilling effect
• Theory
• Conventional arbitrators may adopt split the
  difference approach parties expect this, and
  adjust
• Parties response Take extreme positions
• This lessens chances for reaching agreement
• FOS arbitrator must select one partys position
• Creates new incentive for parties Try to be a
  tad more reasonable (arbitrator-acceptable)
  than the other side
• Parties may find they are not too far apart, and
  reach agreement on their own enhances
  voluntarism this way
• Also, parties have shaped the agreement more
  directly, at least with no modifications option
  (purest form of FOS)

10
Nontraditional Dispute Resolution

• Facilitators for joint union-mgmt committees
• Requires mediator, but with some differences
• Ongoing problem solving may require
  team-building, trust development, attitude change
• Specialized knowledge of the substantive issues
  more critical
• Long time horizons (not focused on strike
  deadline)
• More emphasis on information sharing
• FMCS has shifted emphasis toward preventive
  mediation, toward improving relations rather
  than just resolving disputes after the fact