Mediation and Other ADR Procedures (Part 7 – Labour Management Arbitration in Canada)

Mediation and other ADR procedures

Arbitrators in Canada frequently mediate labour management disputes, prior to proceeding with the arbitration hearing. The prevailing amount of mediation varies according to the jurisdiction, the expectations of the parties and the practice of the arbitrator. In Ontario, where arbitrators often mediate, there is statutory authority in legislation for an arbitrator to mediate, and if the mediation does not result in settlement, the arbitrator may continue to arbitrate the dispute.[1]

Arbitrators may use mediation-arbitration or med-arb processes. With the agreement of the parties, the arbitrator will seek a resolution of the dispute using mediation techniques. The parties usually find it more expeditious and less costly to have the same person as both mediator and arbitrator, if the matter does not settle. The arbitration system is flexible to provide the dispute resolution method the parties require. Also, arbitrators have expertise in labour management relations and collective agreement interpretation, and may suggest creative solutions to assist the parties to resolve their dispute, while at the same time being respectful of the relationship of the parties.

Based on my experience with mediation and med/arb processes, I have observed that the parties are usually quite willing to look at alternatives that will quickly resolve the matter at less cost that a traditional arbitration hearing and with a result that is fair and acceptable. In a recent med/arb process that I conducted, the dispute concerned a grievor who had received a disciplinary penalty of a lengthy suspension. A traditional arbitration hearing would have likely taken several days and required many witnesses. There were issues of circumstantial evidence and credibility. The mediation brought the parties close to settling the matter, but eventually the parties left it to me as arbitrator to decide the penalty. I issued an oral decision, later confirmed in writing. The parties had a decision after a half day med-arb session. The matter was resolved in accordance with the procedure agreed with the parties at the time. There were obvious savings in time and costs, the relationship of the parties was respected and the grievor and management were able to put the dispute behind them.

[1] Ontario, Labour Relations Act, 1995, SO 1995, c 1 Sch A, s. 48(12), see a similar provision in Federal legislation, CLC, s. 60(1.2).