The NLRB’s Mediation Push

By Geoffrey M. Gilbert, Jr. - McMahon Berger, PC.

August 31, 2018

Most employers are familiar with the concept of mediation – the process where opposing parties get together and in an attempt to resolve an outstanding claim. Usually the aggrieved party starts the process by asking for some astronomical amount and the party defending the claim counters with an offer of some change for the parking meter. If everything goes well, after five or six hours of back and forth discussions, the case settles for what the aggrieved should have asked for in the first place. The Equal Employment Opportunity Commission and comparable state agencies use mediation to assist in resolving cases, and several Courts require parties in a suit to participate in it. You know what other agency has it – the National Labor Relations Board (“NLRB”)—and it has been in place since December, 2005. Who knew?

The answer to the question posed above is not a lot of people. That is why the NLRB recently announced a new pilot program to increase the use of its Alternative Dispute Resolution program and “help facilitate mutually satisfactory settlements.” According to the NLRB’s press release announcing the pilot program, the NLRB’s Office of the Executive Secretary will proactively approach parties with cases pending to encourage participation in the program. The press release goes on to state that participation in the program will allow parties “greater control over the outcome of their cases” as well as “more creative, flexible and customized” ways to settle disputes. A mediator from the Federal Medication and Conciliation Service (FMCS) or the program’s director will assist in the process and they can participate, free of charge, by phone, videoconference or in person.

Features of the program include:

• Filing deadlines with the NLRB will be stayed as of the date the case enters the program.
• Processing of the case will be stayed for 30 days from the first meeting with the mediator or until a settlement is reached (whatever comes first).
• The processing stay can be extended an additional 30 days as long as the request for extension is supported by good cause.
• Parties can submit a confidential settlement memorandum to the mediator.
• All discussions with the mediator are confidential.
• Settlement is voluntary — the mediator has no authority to impose a settlement.

In a General Counsel Memorandum (OM-02) dated October 15, 2005 the Office of the General Counsel boasted that settlements are reached in 60% of the cases submitted to mediation and that the Board has approved every settlement reached in mediation. It will be interesting to see if the new pilot program increases the number of cases referred to mediation and, if so, the impact the increase has on the percentage of cases resolved.

The St. Louis labor & employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over sixty years and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.