On Sunday, August 10, Justice John Murray concluded his mediation of the contract negotiations between the Board and the TPA. As I announced that evening, our next destination is arbitration.
In some quarters, anguish has been expressed that for the first time in 10 years, we are going to arbitration.
I do not believe that mediation and arbitration are signs of failure – they are very important next steps in the bargaining process.
For an essential service like policing, there must be a way for the employer and the trade union to resolve their disputes over terms and conditions of employment when bilateral negotiation does not succeed. Unlike many other collective bargaining relationships, there is no right to strike in the policing sector – nor should there ever be. Public safety is not something that can be withheld or interfered with as part of a collective bargaining dispute.
In this essential services environment, mediation and arbitration are the processes which exist to help parties reach a new collective agreement.
Mediation
Mediation is an alternative dispute resolution process often used to try to solve complex disputes. An independent third party, the mediator, assists the two sides to come to an agreement.
One of the most important features of mediation is that the mediator cannot force the parties to agree to an outcome. A mediator helps the parties come to an agreement through a process of identifying interests in joint sessions and separate caucuses. In the right circumstances, a skilled mediator can help close the gap between parties who were initially very far apart.
Over the last decade, the Board and the Association have reached agreements before, during and even after mediation.
Arbitration
The arbitration process is the last step in resolving the collective agreement. At the end of the arbitration process, a written award is usually issued which describes the arbitrator’s decision on the outstanding items. Sometimes, the parties end up reaching an agreement during the arbitration process. The arbitrator’s award is binding on both parties.
Who is the arbitrator?
Arbitrators are individuals who are highly respected in their field and have a lot of experience. Many are (or have been) law professors or practicing lawyers. Some are not lawyers but have a wealth of arbitration experience and understand the collective bargaining process intimately. They are seen to be neutral, and are required to act as such.
How is the arbitrator chosen?
It is usual for parties to plan for mediation and arbitration at the start of the collective bargaining process. This is when they propose and exchange names of possible mediators and arbitrators, and decide on their choice through discussion. When they are unable to make a choice voluntarily, they can approach a statutory body like the Ontario Police Arbitration Commission, and make a request for a mediator or an arbitrator to be appointed. Clearly, the arbitrator is a different person from the mediator.
How does arbitration work?
A critical feature of the arbitration process is that each side must justify its position with credible arguments and supporting facts. Unlike bargaining, or even mediation, the arbitration process involves a third party deciding the issues for you.
Each side prepares written material in advance in support of its position. This material will present the reasons why each side thinks that it is correct about how a particular issue should be resolved.
At the hearing itself, each side has a chance to make a presentation about each issue in dispute.
The collective agreement arbitration is a public process, so interested third parties can attend the hearing to observe what’s happening.
The arbitrator’s award is a public document – so anyone can see what the outcome is. Different arbitrators provide different levels of detail and reasons in support of their decision.
