Mediation-arbitration less adversarial, more efficient process
Nova Scotia has introduced legislation in hopes of providing employers and employees with a faster and more efficient way to resolve disputes relating to collective agreements.
The proposed changes to the Trade Union Act introduce mediation-arbitration for grievances about the interpretation, application or an alleged violation of a collective agreement. However, the process cannot be used for new contract negotiations, said Kevin Finch, a spokesperson for the Department of Labour and Workforce Development.
“Mediation-arbitration is practised in the community but there is no formal framework for it. We’re hoping this will just be one other option that employers and workers will be able to utilize to try to come to a resolution of a grievance or dispute, in a faster process, potentially less expensive to them and in a less formal situation,” he said.
If both parties decide to use this process, a mediator-arbitrator would work to resolve their dispute through mediation. If a resolution cannot be reached, the mediator-arbitrator would impose a binding solution on both parties within 30 days.
Modelled after mediation-arbitration processes in Ontario and British Columbia, the process is voluntary and will never be imposed on parties in conflict, said Finch. The parties, not the government, would bear the cost, he said.
In Nova Scotia, as in most Canadian jurisdictions, the Trade Union Act contains a provision for binding arbitration to deal with grievances under a collective agreement, said Gus Richardson, a mediator-arbitrator in Halifax.
The process was supposed to be faster and more informal than tribunals or courts, with less stringent rules of evidence, he said. But, over the years, there has been increased procedural wrangling.
“The system has become bogged down to some degree,” he said.
Mediation was developed as a way to avoid arbitration and so both parties could reach a mutually agreed upon resolution with the assistance of an impartial third party. But if a resolution is not reached, the mediator couldn’t then become an arbitrator, which forced both parties to go through all the details of the conflict again with another party.
By allowing the mediator to assume the arbitrator’s role, the process should become faster, cheaper and more efficient because often a mediator-arbitrator won’t need to hear any more evidence before rendering a decision, said Richardson.
While this has gone on informally in the province for a few years, the practice isn’t widespread and many mediators were reluctant to become the arbitrator because they would have heard evidence from both parties that an arbitrator might not be privy to, he said.
By enshrining the mediation-arbitration process in the Trade Union Act, the government is telling mediators it’s OK for them to have that “insider” information, said Richardson.
“By creating these changes, the government is just recognizing it’s out there,” he said. “It gives more flexibility to the parties to come up with a process to resolve their grievances.”
The legislation was recommended by the province’s arbitration advisory committee, which is a joint employer-union committee, so the bill enjoys both employer and union support, said Brian Johnston, manager of law firm Stewart McKelvey’s labour and employment group in Halifax.
The legislation should make mediation-arbitration a more viable, popular solution, he said. A mediator-arbitrator will have more experience in dealing with similar conflicts and help the parties reach a solution they wouldn’t have seen on their own, he said.
Mediation-arbitration also provides a less adversarial alternative to courts and tribunals.
“It does allow for more frank and friendly talk as opposed to a confrontational manner of litigating a case,” he said.
However, it doesn’t work as well in a conflict where there is only a yes or no solution.
“Mediation-arbitration doesn’t necessarily lend itself to cases where you can’t compromise,” said Johnston.
The proposed legislation would also prohibit courts and tribunals from calling mediators and mediator-arbitrators as witnesses.
Parties working with a mediator often provide a lot of confidential or sensitive information.
“They do so under the expectation that the information they are sharing is private and confidential and isn’t for other parties,” said Finch.
