A Primer on Mediation

Mediation

At any time during collective bargaining, either or both parties may ask for the assistance of a mediator. The appointment of a mediator is a regular part of the collective bargaining process. In Alberta, a neutral third-party is appointed by the Government of Alberta to work with the parties to try and reach an agreement. Formal mediation is a required step prior to either party being able to engage in a strike or lockout.

The most typical potential outcomes of formal mediation:

1. The mediator can help the parties reach a ratified collective agreement.
2. The mediator can issue a recommendation for settlement that is accepted by the parties and forms the basis of a collective agreement.
3. Both or one party rejects the mediator’s recommendations.
4. The mediator is not able to resolve differences between the parties and makes no recommendations.

Source: Labour relations – Dispute resolution methods

The mediation process 

Once formal mediation begins, the mediator will meet with the parties, evaluate their respective positions and work with them to discuss issues, refine their interests and perspectives where possible and try to broker a settlement. The parties are expected to meaningfully participate in mediation with a genuine intent and reasonable effort to try to come to an agreement. Should the differences between the parties be close enough, the mediator has the choice of providing the parties with recommendations for terms of settlement in the form of a report; the parties may then accept or reject the recommendations. A mediated recommendation, if agreed to by both parties, is binding (subject to each side’s ratification processes).

Mediation can end without the mediator making any recommendations for resolution. In that case, the mediator will “write out”, meaning the mediator writes for the record that mediation is over and they cannot at that point make any recommendation for resolution. If the mediator does this, it does not necessarily mean that the mediator believed continued mediation to not be valuable or advisable or suggested that it should end, although that is one possible scenario. The mediator might think that there is still progress to be made in the mediation, but will still have to “write out” and end the process if one or both of the parties insist. Even if one party and the mediator believe mediation should continue and progress can be made, if the other party opts not to continue, it ends.

If mediation fails

If mediation fails to produce an agreement, including if either party calls for mediation to end, there is a 14-day mandatory cooling off period. At the end of a 14-day cooling-off period, the parties have the option of taking strike or lockout action, though that is not required and bargaining can continue as appropriate. Before the union can take lawful strike action, a vote of the union’s membership that is supervised by the Labour Relations Board must be held. 

To participate in a strike vote, an employee must: 

(1) be in the bargaining unit affected by the dispute, and 

(2) have worked at any time during the 60 days before the date of the strike vote. 

The results of a strike vote are determined on the basis of a majority of those who vote and not on the number of members in the bargaining unit (i.e. if a member does not cast a vote, that member is not counted in calculating whether there is a majority support for a strike mandate).

Before a strike or lockout can take place, the other party must be given notice of the time, date and initial location of the intended action. To be effective, the notice must be properly served to the other party at least 72 hours in advance of the strike or lockout action. If no action takes place at the time indicated, the notice expires and a new notice must be served prior to strike or lockout action being taken.

If no strike or lockout has begun after 120 days, the party must take a new vote if it wishes to take strike or lockout action.