This Cornell ILR keynote panel, moderated by Dean Alex Colvin, examines the critical role of labor mediation and the risks posed by cuts to the Federal Mediation and Conciliation Service in an increasingly polarized labor relations landscape.
Find out more about the Scheinman Institute: https://www.ilr.cornell.edu/scheinman-institute
When labor peace breaks down, the consequences reach far beyond the bargaining table. As labor conflicts become more visible and negotiations more complex, one of the least‑understood questions in labor relations is also among the most important: Who helps the parties when the stakes are highest?
This Keynote will explore the role and impact of labor mediation and why preserving that capacity matters for workers, employers, the economy, and the public. Drawing on recent developments in conflict and dispute resolution, the session examines the essential role of mediators, the repercussions of downsizing the Federal Mediation and Conciliation Service, and the urgent need to rebuild what is close to being lost.
Join Cornell ILR School Dean Alex Colvin as he moderates a panel featuring faculty members Ariel Avgar, Dionne Pohler, and Javier Ramirez for a critical conversation on the evolving landscape and actions necessary to build labor peace.
What you'll learn:
Intro:
Welcome to Cornell Keynotes. Today, we're joined by Cornell ILR School Dean Alex Colvin, who moderates a critical panel featuring faculty members Ariel Avgar, Dion Pohler, and Javier Ramirez. Together, they explore why labor mediation matters more than ever as conflicts become more visible and negotiations grow increasingly complex.
Drawing on recent developments in conflict and dispute resolution, they discuss why trusted neutrals are essential when the stakes are highest for workers, employers, and the public. Much of what they cover connects to labor relations and dispute resolution principles taught in the online employment law Cornell certificate program.
And now, here's our panel discussion with Cornell's ILR's Alex Colvin, Ariel Avgar, Dion [00:01:00] Pohler, and Javier Ramirez.
Alex Colvin: Now, labor peace is something that rarely makes headlines until it's gone. we're gonna explore what's changing in labor relations, how mediation fits into that system, where the system's under strain, and whether it has the capacity to handle what's coming.
Now, before we get into the discussion, it's worth grounding where we're at right now in the labor landscape. What we're seeing is not some large national strike wave. It's actually more fragmented, more targeted, more complex than that. The center of gravity in labor relations has shifted beyond just the bargaining table to involve courts, agencies, public pressure.
We'll move through four parts of what we're seeing: what we're seeing, how the system works, where it's strained, and where do we go from here. I'm gonna start off pos- a question to you, Javier. You've been at the [00:02:00] center of some of the most complex disputes in this country. What are you seeing on the ground, and how is today's environment different from even five or 10 years ago?
Javier Ramirez: Yeah, thanks. I would say that generally, over the past five to six years, the table dynamics have absolutely changed. They're being more complex. The complexity has increased with things like the issues that they're bargaining. Seldom now is it just the classic contractual demands of wages and benefits, but we're actually seeing a fight for control of the workplace, where it's more than just the economics that they're talking about.
It's more the conditions of employment. But also for a fight over the control of the negotiation table, where we see rank and file battling with union leadership, a greater oversight on the employer side, where they have tighter negotiation parameters and authority. We're also seeing greater polarization across the table where we s- you know, it's a lot of that, eat the rich type of mentality, but also within [00:03:00] committees.
And we're seeing more emotions, where we hear more commonly things like "How can they disrespect us like that?" Or, you know, "What's their angle? What are they really trying to do with this type of proposal?" As well as the use of power as opposed to problem-solving. And we're seeing this spill over outside of the, the negotiation table into the courts, into the political arena, around policies and, uh, interest from elected officials, and public pressure campaigns.
And we saw all of this in one example with the New York nurses strike that happened towards the beginning of the year. And I'm not breaking any confidences in talking about this. You could just Google it, and everything played out in the public. So you could see it in social media, you could see it in the press, which that actually increased the difficulty at the table, where folks were being more positional and less likely to move from that public stance. But those negotiations involved the New York Nurses health system, the New York City, uh, health system [00:04:00] with the safety net hospitals, the four largest collective bargaining agreements, all with their separate issues, yet linked.
And those relationships and impacts had to be acknowledged, not just as separate agreements. And all the complexities that I mentioned that we're seeing in negotiations today were present in these one negotiations. Plus, something that I had never seen before, the four major units ended up at the Javits Convention Center with five mediators in the mix, one from the New York State PERB, two Federal Mediation and Conciliation Service mediators, me from Cornell Scheinman Institute, and Marty Scheinman himself.
And historically, you have one or the other. You have federal mediators or state mediators or private mediators. Never really a two-ring show, let alone a five-ring show as we experienced there. And we had to use what's seldomly used in the mediation world, the mediator's [00:05:00] proposal, where all five mediators presented one offer for all the parties to consider, and that's what ultimately brought the largest and longest nurses strike in New York City history to an end.
And we did that because we didn't see the union proposing a deal that the employer would accept or the union accepting an employer deal. There's a common saying in negotiations where the sign of a good deal is when both sides walk away equally dissatisfied. And if there's truth to that, I think the mediator's proposal definitely hit that sweet spot
Alex Colvin: So do you think this is an isolated case or is it part of some broader trend that we're seeing?
Javier Ramirez: yeah, I would say it's definitely not isolated. we- we're seeing this broadly across the nation. Like in healthcare, it's not just about wages where they are fighting for those workplace controls or conditions of employment, where we're seeing issues like staffing and safety, space or overcrowding concerns, patient care.[00:06:00]
And that draws the public attention. When we as consumers are hearing the patient concerns, we become interested in that. First contracts, they've always been difficult. They usually take over a year to negotiate. But those are now the new public battlegrounds as we see with REI and Starbucks.
Broadly unions, uh, they use targeted pressure like in public campaigns, boycotts or strategic disruptions, not just large scale strikes. members are more polarized but yet engaged and vocal. And it makes it difficult to know what is truly needed to get a deal that can be ratified where now we're seeing collective bargaining more as individual agreements.
The, th- All those individual polarize concerns that need to be satisfied from a fractured committee in order to reach that deal. And it's- it's not an anomaly. We're seeing that with Boeing in Seattle and St. Louis where [00:07:00] they rejected multiple tentative agreements. Correctional officers in New York engaging in wildcat strikes.
Union as employers facing their own strikes where the staff is striking them. And looking at the UAW and the Big Three automakers, United Auto Workers and the Big Three automakers, they had targeted locations that they struck and they gradually increased and expanded, uh the strike. And the day after, the day after they ratified all the agreements, they started to coordinate, uh, making attempt to coordinate expiration dates across the country for May Day 2028 to organize a general strike.
This is all, across the country. It's definitely not isolated.
Alex Colvin: It's interesting the examples you're talking about. They sound like they're not just a failure of the skill of the negotiators to reach agreements. They're actually, being driven by very different environments that the parties are bargaining in.
Is that, is that accurate?
Javier Ramirez: Yeah, absolutely. It's definitely not a a breakdown of skills. There's very smart [00:08:00] people on both sides of the table. But as you say, the environment is changing. bargaining has this, this dance to it, but the dance is changing. Where before you get in there and you're looking at, it's like ballroom dancing.
One side's doing the waltz, and the other side may be doing the tango or the foxtrot, and they might step on some toes, right? But eventually they find the rhythm, and they get their tentative agreement and it's and it's done. But now that dance has turned into a mosh pit. And when the music stops, not just are there stepped-on toes, parties are bruised and battered, which impacts relationships, and that makes the next negotiations that much more difficult.
Alex Colvin: let's now turn, uh, to focus uh, more directly on mediation itself. And Ariel, I wanna turn to you, and could you walk us through how mediation fits into the US labor relations system?
: Yeah. Thanks so much, Alex. Really, excited to be part of this panel and to have this conversation about mediation and the role that it plays within our labor and employment relations system.
I'll zoom out a [00:09:00] bit, and talk about mediation as a practice, and then our mediation and dispute resolution system in the United States. So let me say just a few words about mediation and how it differs or how it's unique as compared to other dispute resolution practices. Mediation is fundamentally a negotiation with the assistance of a neutral third party.
Really important to understand around mediation is that the mediator has absolutely no authority to impose an outcome, a settlement, a resolution. Instead, the mediator helps the parties to communicate more effectively, to clarify interests, and to move through conflict in a structured way.
Mediation is therefore an informal and interest-based approach, or interest-based option. And as Javier likes to say, In mediation, the mediator owns the process and the parties own the outcome," which is a difference from other dispute resolution techniques like arbitration, in which in a rights-based approach, where the arbitrator decides who's right and who's wrong, the arbitrator controls both the process [00:10:00] and the outcome.
Because mediation emphasizes party control and flexibility, it tends to produce solutions that are more durable, long-standing, and often more creative. it can also strengthen the parties' own muscle to resolve conflict, not in the conflict right here and now, but in future conflicts. And it's these features that help explain why mediation has become such a central and important stabilizing feature of the labor relations system in the United States.
Its core purpose is to prevent disruptions of commerce and manage impasse between labor and management when it arises, and to help preserve relationships between the parties over rounds of bargaining. for decades, going back to 1947, but especially since the 1970s, mediation has been a central tool for a wide range of labor and employment contexts, disputes in those contexts.
now I wanna kind of move into talking about our dispute resolution system itself and some of its defining features, what makes it [00:11:00] unique. and I think we'll come back to these elements uh, throughout our discussion. One of the most defining features of our system, perhaps again, the most is that it, there's a sharp distinction or a bifurcation between the unionized and non-union settings.
In the unionized settings, there's access to very stable institutionalized dispute resolution uh, processes, including uh, mediation. Um, and this is closely tied to the union status. In the unionized workplace, mediation is typically embedded within a collective bargaining agreement and supported by access to public agencies, federal, state, and local.
Non-union settings on the other hand, are far more variable and less institutionalized. As a result, conflict resolution systems tend to be stronger and more predictable in unionized environments as compared to their uneven non-union ones. Okay, that's feature one. feature two is that we have a very fragmented system.
There really is no single mediation or dispute resolution system [00:12:00] in the United States. Instead, we have a mediation that's provided through a mix of federal, state, local, and private uh, actors. At the federal level, it's the Federal Mediation and Conciliation Service, or FMCS uh, for short, that sits at the core of our system.
Created under the Taft-Hartley Act in 1947, the FMCS is designed to reduce labor conflict that could disrupt commerce, and has historically been focused, again, on the unionized setting, something we'll come back to throughout our discussion. It's an independent non-advocacy agency, which has been essential for its legitimacy. And although it's experienced recent funding cuts, the FMCS remains a vital institution and operates alongside state uh, and local agencies.
A third feature, that's layered on top of these public options or public dispute resolution options, is that our system relies very heavily on private mediation. There's in essence a private mediation market. Private mediators handle a [00:13:00] significant share of disputes, bringing deep expertise and flexibility, and at the same time, a combination of public and private providers produces some variation in access and consistency and makes coordination somewhat difficult.
Finally, our system is highly decentralized. Mediation usually takes place at the individual workplace level rather than through more centralized oversight standardized settings. This allows, on the one hand, for responsiveness to local conditions, but also again limits the coordination or system-wide learning that can happen across the different contexts.
taken together, mediation in the United States is widely accepted, deeply embedded in collective bargaining, and broadly available, especially in the unionized setting. At the same time, it operates in a system that's fragmented, decentralized, and quite uneven. in light of the kinds of conflicts that Javier just told us about raises important questions about the [00:14:00] adequacy of the current system to meet this current moment in terms of the kinds of conflicts we're experiencing and the ways in which they're playing out in the collective bargaining arena.
Alex Colvin: Great. So one of the things that really jumps out, right, is the importance of mediation in the US labor relations system. If we wanna understand our system, uh, thinking about alternatives it's often very helpful to be able to look at other systems and how they use, uh, similar things like mediation to make their systems work.
Dionne, I'm gonna turn to you because you recently moved to the US from Canada, and you also practice as a mediator back in Canada. How does the US context compare to Canada?
Dionne Pohler: you know, Canada has a lot of similarities to the US context. We have very similar legislative framework for both, uh, labor law in the unionized context as well as for employment law in the non-unionized context.
the structure of mediation in Canada is also very similar to the US in terms of the things that Ariel talked about, the bifurcation and use of very different conflict resolution processes between union and [00:15:00] non-union environments and workplaces. also the widespread use of both government and private mediators in conflict resolution in both sectors.
But there are some really important key differences as well. So Canada actually um, has an even more fragmented and decentralized legislative framework than in the United States. So the majority of both unionized and non-unionized workers in Canada, in both the public and the private sector, are covered by provincial labor and employment legislation, so only 10% of the Canadian workforce is, is actually under the federal jurisdiction, and most of those workers are in the public sector.
So that's very unlike in the US, where the federal NLRA covers the majority of private sector workers in the United States. But more similar to the US, government agencies or departments within governments, like in, in the Departments of Labor, um, at both the federal and provincial levels in Canada provide collective bargaining and grievance mediation services for employers and workers alongside private mediators.
Um, the um, [00:16:00] interesting piece is that in government agencies in Canada, they normally, um, li- like FMCS or uh, other government agencies in the US, they do have their own staff in-house mediators, but many also contract with private mediators to provide publicly funded conciliation and mediation services.
and many of the government agencies in Canada also provide dispute prevention assistance through training workshops on collective bargaining, joint conflict resolution, and grievance mediation services for the parties. Probably major key difference is that most labor legislation in Canada also includes provisions that require parties to undergo mandatory mediation if bargaining reaches an impasse, prior to being able to legally go on strike or a lockout and, and it's referred to as conciliation in Canada, that process.
And even following that, that mandated conciliation process, most legislation also creates cooling off periods following mandatory conciliation. and I know that in some US states, they also legislate [00:17:00] required mediation for public sector workers prior to going on strike or lockout.
Some teachers in some states have that, or prior to going to interest arbitration in the case of public safety officers like police and fire in some states. But Canada explicitly legislates mandatory conciliation in virtually all collective bargaining contexts, and it also sometimes legislates or is required by courts and tribunals in certain non-unionized employment disputes like wrongful dismissals or anti-discrimination, called human rights cases in Canada.
And I think part of the reason for this difference is that Canada has experimented much longer with government providing these types of alternative dispute resolution services much longer than in the US. I think mediation was embedded in legislation in places like Ontario as early as the 1870s.
But of course, Canadians are also, I think, culturally much less comfortable with overt conflict. So I think in the US, the saying's, "Life, liberty, and the pursuit of happiness." In Canada, the saying goes, "Peace, order, and good government," is the sort of the sa- similar kind [00:18:00] of saying. but I wanna also point out that despite the fact that Canada has some of these differences in a more sort of cultural embeddedness of mediation and legislative mediation requirements, it still is facing more regular and intensifying labor conflict like we see in the United States.
So Canada Post and the Canadian Union of Postal Workers were in a prolonged labor dispute that started in 2023 with two major strike actions in 2024 and 2025. That was recently settled, um, but it was a long time coming. Late last year, over 50,000 public school teachers in Alberta went on strike for almost, uh, just under a month.
During the tail end of the pandemic, there was a threat of a general strike by the Canadian Union of Public Employees after the provincial government of Ontario imposed a settlement on education workers there. and perhaps most famously, what many people would be more familiar with, the trucker convoy earlier that same year, was a wor- started as a workers protest, and, and this had a massive impact on the economy due to border closures.
The [00:19:00] government enacted the Emergency Measures Act, and criminal charges were laid against some protest organizers. So, um, in summary, I think I'd say Canada has a s- very similar context, um, to the US, but historically, Canada, I think, has had much more direct government involvement in attempts to introduce alternative dispute resolution mechanisms.
It has much more publicly structured and funded and mandatory use of conciliation legislated as part of the collective bargaining process in particular There's a, I think, a stronger cultural commitment to mediation, early intervention, and training to be provided by government agencies. So, maybe the way I'd put it is the US relies more on access to mediation by the parties, whereas Canada, I think, relies more on expectation and integration of mediation into most labor and employment dispute resolution processes, and especially in collective bargaining.
But again, even in spite of this, we're still observing this increased unrest and labor peace at risk in Canada as well.
Alex Colvin: Great. So I think as we've got a picture of the [00:20:00] role of mediation within the labor relation system, now let's dive in, into some more detail on how the system's under strain, what the challenges are that we're seeing.
Javier, can you talk to a little about the area of trust? Trust is a really central component of successful mediation. What are you seeing in the area of trust?
Javier Ramirez: Yeah, we're definitely seeing a decline, a decline in trust of the labor institutions and the labor processes, and that causes skepticism towards, proposals when they're at the table, where parties are becoming reluctant to agree to counters, which leads to, what we'll call performative bargaining, where they're more performing for the members, and the CEOs, and the public resulting in less effective communication and problem-solving.
And, it's leading to more reputational strategies, where you're seeing more boycotts, shareholder pressure, and other public campaigns where they're trying to insert that pressure away from the table [00:21:00] because of that concern of seeming weak, either to the other side or to the general public, because of that lack of trust.
Alex Colvin: Ariel, do you wanna follow up on that question of trust and, uh, are we losing it?
: Yeah. Thanks so much for that, Alex, and I'll sort of build on Javier's comments and maybe try to help explain why we're seeing this reduction in trust. Uh, it's important to situate mediation and labor relations more broadly in the context of the dramatic changing and reshaping of the world of work.
Almost every facet of work is shifting, where work is done, how it's done and the assumptions that we've held for a very long time about the structure of the workplace and the employment relationship. Technological change, and especially the rapid diffusion of AI, is part of this. It's disrupting established ways of working and adding another layer of uncertainty to an already strained labor relations systems.
These changes are occurring alongside a range of other pressures, as if that wasn't enough, from economic volatility to [00:22:00] shifting organizational models, and together they're producing a great deal of instability in labor relations. this volatility adds additional strain both to labor and to management even before disputes arise.
Okay, I'm gonna add to that complexity just a couple of other le- layers. One more reason for this mistrust that Javier talks about is the growing misalignment in expectations between workers, unions, and employers. What workers and unions are expecting from employers is shifting in dramatic ways and are increasingly out of sync.
In many ways the psychological contract that we've been living through since the '90s is actively being renegotiated. Workers and unions are articulating new demands around work-family balance, flexibility, voice, equity, and job security, while many employers are still operating under assumptions that are rooted in the prior labor relations model or psychological contract model.
And this has resulted, as Javier pointed out at the outset, and in his [00:23:00] remarks just now, in a more adversarial and polarized labor relations environment. This polarization makes it really difficult for mediators to be effective. For mediation to be effective, of course, it requires trust and collaboration and an integrative mindset, and a willingness by the parties to engage in good faith.
And when Javier says that there's sort of performative negotiations, that's a problem. yet collaboration is not being modeled, uh, not within the labor relation sphere, and of course, also not in the public discourse more generally. this erosion of collaborative norms have direct implications for mediation and mediators.
mediation depends heavily on the credibility and acceptability of the mediator by both parties. But in a polarized environment, in an adversarial environment, establishing that credibility becomes really hard. Parties enter the mediation much more skeptical, often they're more defensive, and maybe less willing to view the mediator as legitimate and neutral.
So just to kind [00:24:00] of recap, unions, employers, and workers are contending with the consequences of a rapidly shifting landscape. Mediation is becoming even more critical as a tool to improve relationships and to build relationships and solve conflicts. And at the same time, these conditions make mediation or effective mediation even more difficult.
In the absence of trust, shared expectations and openness to collaboration makes mediation a trickier feat to perform.
Alex Colvin: Now we've been talking about labor and management and their roles in, uh, resolving conflicts. But one of the classic difficulties and challenges in collective bargaining is that each of those parties involves many parties within them.
So within labor the members of the union have to agree on, uh, the contract. Within management, there's different interests within management. so I wanna turn to this question of the internal alignment within each of the parties. And, uh, Javier, [00:25:00] could you tell us a little about what's happening internally with the parties now and how that affects collective bargaining and mediation?
Javier Ramirez: Yeah, you're spot on. The, the, the battle's definitely more within the internal committees we see you know, than across the table. And we're seeing these greater gaps between membership and union leadership, where we're seeing it's much more common now than ever before that tentative agreements are being rejected.
Even on the employer side, on the employer side committees, they have less room to move and a greater need to constantly check in with their leadership to see if it's okay to take certain positions. Where parties are nervous to agree uh, with concern of upsetting either their employer leadership or the union membership.
Basically, they don't want the backlash from their own teams. So what's happening is that the issues or the negotiations end up stalling out, where deals are there, but they still don't wanna agree, and that's more out of concern from their own [00:26:00] committees than the actual deal itself
Alex Colvin: Yeah, dionne, do you wanna talk as well about this question of trying to get that internal agreement?
This, I think, is a really complex problem for, uh-
Dionne Pohler: Yeah ...
Alex Colvin: mediation.
Dionne Pohler: I almost think it's as complicated as getting the deal across the table now. Javier's right. there's much more internal negotiation going on within union and management committees about what to do before there's any chance of movement at the table.
also, I think within each side, they're actually, they're much more fragmented coalitions and, greater polarization, particularly within unions due to internal member diversity of perspectives and priorities, uh, also the way that external politics and social issues, um, ideology and identity-based social dynamics are playing out in bargaining.
So whereas before disagreements were usually about clear and broad-based economic trade-offs, like for instance, between pensions versus wages or wages versus employment levels, you know, now it's really moving to discussions or [00:27:00] societal discussions and conversations that are being forced to be having, had with, uh, particularly within, um, the union side. issue and bringing issues forward that have been polarized more broadly, like requirements for DEI training or specific types of healthcare coverage for trans members or policies around vaccines.
So I think I'd sort of summarize this like the strain isn't just across the table. Um, it's within each side, and it's now more polarized based on both economic and identity-based factors.
Alex Colvin: Yeah. And one of the really interesting thing about those identity factors, and you mentioned the kind of social issues, are those are things that just broadly people are focused on in, in society.
You see them on social media, things that go viral online. That's connects to another change in the negotiations, right? This question around the sort of stuff that's happening at the private table, but now we live in a very public world where everything seems to be on public display. how's does that public nature of [00:28:00] conflict affect negotiations?
Dionne Pohler: Well, I think, so the common phrase, it was common in Canada, and I understand is also very common in the US, the saying used to be, "We aren't going to negotiate in public or bargain through the media." but I think that that's sort of gone the way of the dodo bird. social media campaigns and social amplification are used regularly now, and, and those things can really increase hot emotions, like anger, that then need to be worked out the, at the table before the issues can actually be, um, addressed.
Um, I think that the, what we see is that, sort of that, bargaining playing out in the media or in the public, it can lead to further decline in trust between the parties at the table or even within those, uh, within their bargaining committees. It forces parties to sometimes have to maintain certain positions publicly which then also can impact members' ratification votes. and again, there's sort of the framing and external group solidarity enhances polarization. There's reputational pressure that both sides needing to pay attention to. I also think [00:29:00] that individuals are struggling to work through some of these issues.
They're struggling with effective dialogue skills across difference, and I think part of that comes from sort of there's not always the same ability to see the legitimacy of others' opinions and perspectives. and so I think these, the fewer sort of opportunities for private problem-solving opportunities give less flexibility for movement at the table.
and so I think, again, I would sort of summarize it by saying when everything is public, the space where mediation works best gets smaller.
Alex Colvin: Yeah, uh, which I think is a real challenge for, mediation if, space is constrained. I think that gets then to, question about how, how mediation's being used, and are we seeing changes in that?
Ariel, do you wanna comment a little on that question, that what changes are we seeing in how mediation's being used?
Ariel Avgar: Yeah. Thanks, Alex. I think building on Dionne's comments and Javier's comments, the short answer is yes, we're very much seeing differences in how, mediation is being used.
There are clear changes, in this, area. [00:30:00] One major shift, uh, comes from an area that we haven't yet talked about, is the fact that there's organizing in new settings and new industries, including nonprofits, new media, and other emerging, sectors. And so exacerbating many of the things we've already talked about in these environments, the labor management relationship is often newer, less experienced, uh, with labor relations in general, collective bargaining in general, but also with mediation and the role it can play as a constructive tool.
And unlike more traditional industrial settings, mediation is not yet embedded as a routine or trusted part of the relationship. Another way in which we're seeing, differences or mediation used in different ways, there appears to be later intervention. Mediator is not as used as early as it was in the past.
For example, there's less training, less proactive engagement with mediators in advance of a full dispute, and fewer efforts, to address conflict before it fully escalates. We know that mediation has, works best when it's part of an ongoing relationship, not something that's [00:31:00] introduced by the parties once they've already reached, uh, impasse. we're also seeing a weakening of the longstanding relationship between parties and mediators.
Often parties will have, labor and management will have a longstanding relationship with a given mediator or set of mediat- mediators that traditionally has supported kind of effective use of this tool. In part, this reflects a thinning pipeline of experienced labor-focused mediators. and at the same time, there's a proliferation, as we noted earlier, of private mediation providers who not always, sometimes they do, but they don't always have the same deep expertise in labor and employment relations or an appreciation to the unique dynamics associated with collective bargaining or collective conflict.
And finally, uh, mediation increasingly, based on all of these things, appears to not be the default response to conflict as it once was. Instead, we're seeing more, other forms of, uh, kind of trying to resolve conflict, more adversarial forms, strikes, other forms of collective action, [00:32:00] public campaigns, and a turn towards more, again, adversarial strategies.
Those approaches may serve important purposes, but they often mean that mediation starts later on. Mediators enter late, and that makes it more difficult to be effective. So yes, we're seeing, uh, meaningful changes in mediation. it's a critically important moment to use more mediation, rather, uh, than less.
Alex Colvin: Yeah. Thanks. Uh, Javier, maybe throw that question to you as well. Uh, what changes are you say- are you seeing in how mediation's being used?
Javier Ramirez: Yeah, and I'll pick up where, where Ariel was, uh, leading off there, where we're seeing these different strategies, and I think one of them is a greater reliance on power.
And we saw that you know, with the UAW and the Big Three negotiations, Teamsters, and UPS, where they didn't want a mediator involved in their negotiations. And we're seeing that more in healthcare strikes, and we're seeing these broader pressure strategies, and not even just on the union side, but also on the employer side. [00:33:00] As we're seeing with REI, where they're declaring an impasse so that it, they can implement their last offer.
So mediation is either being bypassed or delayed. And we even saw, a little over a year ago, FMCS institute a convening policy, where if the parties were on strike for 30 days and there's been no third-party engagement, that they would convene the parties. So neither side is asking for mediation or agreeing to mediation.
They're being told, "Come here and talk." And the reason for that is we were seeing that folks were concerned with their image. that they were gonna look weak if they enga- engaged in mediation, or more of a strategy of forcing the other side to the table. So mediation hasn't disappeared, but the changing strategies are definitely impacting the timing of mediation, as Ariel was talking about, as well as the selection where mediators have to be more [00:34:00] aware of how they're mediating, where they, they're gonna have to be more engaged, more assertive, and truly controlling the process when they do get involved.
Alex Colvin: so we're kind of laying out a landscape where we're seeing this, complex environment of labor relations, different kinds of disputes, complex internal alignment issues, uh, within the parties, difficulties maintaining trust when we've got more public disputes. All of this seems to be a fundamental strain on our capacity to provide the mediation that will help the parties.
I want to turn to that question of mediator capacity. Javier, what, what are you seeing in terms of our capacity, on the mediation side to provide the mediation that the parties need to resolve these labor disputes that we've been describing?
Javier Ramirez: Yeah, the capacity's definitely a concern that I have looking down, in the next five to 10 years.
it, it's a concern. [00:35:00] FMCS was the hub for years, and, under this administration, they ended up going down to a very small handful of mediators, less than 10 at one point, from 140. Uh, there was an injunction that was filed and, they were forced to bring back, the, the mediators, and now they're at around 58 mediators, again, from 140.
And although there's been this significant loss of institutional knowledge within the agency, FMCS still has great mediators, and although there's not 100% coverage, they're still providing services. So what's happening is that some states are picking up the slack, and some of them are doing a really good job, like New York and Minnesota, California, Washington State, and others.
But even where they are willing to pick up some of the slack or, or fill the gaps, there's concerns as, as far as do they have the authority? Do the states have the authority to do that work? And even if they do have the authority, do they have the funding to do it? And that's where the [00:36:00] private sector is coming in.
and they're largely scattered. Arielle had mentioned that, that many of them have hung up, their own shingle. And so it, that becomes complicated for the labor management community. Where do I go to get these services if I can't get them through, the federal or state services? And that's what we're trying to do with, uh, Scheinman and the AAA, to centralize some of those private requests to be a point where folks should go, "Where can I get these services?"
And we can help direct some of those, uh, services. But that shift from free to fee- folks are struggling with that. and some people are being left out because not everyone could afford, private mediators. And when they do engage the private mediators, they're being more demanding, as they should be, and also more judicious on if they're gonna engage in mediation as well as when they engage in that mediation, um, usually later in the process.
Alex Colvin: Dionne, uh, on this question of capacity, how do we provide the capacity, uh, what we need, [00:37:00] uh, from mediation-
Dionne Pohler: Yeah, so in- ...
Alex Colvin: mediators?
Dionne Pohler: In addition to the, broader context that Javier provided about sort of the loss of capacity, at FMCS, there's also just in general overall a shrinking mediator pool in labor and employment, like for labor employment mediators.
A lot of mediators are getting, older. there's also general attrition that happens even as people kind of try and enter the field. It's really difficult to get started in this field without mentorship from more established neutrals who have trust of parties. there's a limited development pipeline.
mediation requires a lot of, training, but even more importantly, hands-on experience, um, e- extensive hands-on experience. So in- investment in this career is high, um, and people don't always have those connections to get started. And so, one of the things I would just sort of say about what's happening, it's not just that there's more conflict, it's more demand on a system, whose capacity is under strain.
And so what we're seeing is not a system that has so much stopped [00:38:00] working, but a system that is under strain from multiple directions all at the same time. So, you know, demand is increasing across many sectors, healthcare, retail, logistics, entertainment. but the pipeline of experienced mediators is definitely tightening.
Alex Colvin: Yeah, I think that's a really, um, important point because we get to that question of, you know, if we need the mediators, how do we develop them? How do, how do they get into the profession, right? It, p- I'm often asked this question of, you know, "Oh, I'd like to be a mediator. How do I become a mediator?"
And, and we don't have really good answers to that often. I used to send, students along to the FMCS as kind of one side, but as Javier notes, that's been, curtailed down. Some of the state agencies have been good places for people to start in the field, but, the, uh, private mediation, particularly developing the trust of the parties, uh, you always want the trusted mediator, but how do you get somebody to that point of being the trusted mediator?
Exactly.
: Seems
Alex Colvin: like a really fundamental problem.
But I want to, do some questions around the whole group, a [00:39:00] couple of broader questions.
One is we've been talking a lot about problems, right? We've talked about, uh, why the system's under strain, things that aren't working well. but, you know, I want to check out the difficult question, well, what should we actually do about this? How can we actually, deal with these issues going forward?
We've co- talked about lots of problems. do we have any solutions, uh, here? What directions could we go? Javier, I'll tee you up first. Uh, where should we be going here with this?
Javier Ramirez: Well, I would say that, um, a- and you were talking about this just a, a little bit where you were talking about the, the FMCS.
I think that the uncertainty of FMCS creates instability. for years, they were the hub. They weren't the only thing as, as both, Arielle and Diane mentioned, that it's very decentralized, but they, they were the core. So I think we need to look at going back to publicly s- supported, when I mean supported, funded mediation.
I believe that that remains critical. it takes years to identify and develop labor mediators. You can't get [00:40:00] ADR professionals and just drop them into a complex labor negotiations if they don't understand labor. It's just, it's not gonna work. It's gonna be brutal for both sides. So, in addition to, to that, we need more deliberate coordination between federal, state, and private, players just similar to how we did it with the, New York nurses strike and a few other locations, where we just need to, uh, point each other and, and, and assist each other.
mediation should be used earlier to allow for more levers, at play to help find that agreement. People are less dug into their positions, earlier on, and less damage has been done. So more intentionally use mediation, looking at it as not a sign of weakness.
Alex Colvin: Arielle
Ariel Avgar: Yeah, Alex Here we go You're absolutely right.
It's easy to, raise problems. We also have to think about how to solve them. And so given the strain that our system is under that we've spent quite a bit of time talking about, I think the way forward builds on Javier's comments. it's [00:41:00] to focus on rebuilding both capacity, to Dion's point, and awareness, confidence, and trust in mediation as a core labor relations institution and employment relations, more broadly.
So here's my wish list of things I think we should try to do. First, we need to reorient labor and management towards a renewed understanding of mediation, not just in the union setting, this is something keeps coming back, but in the non-union work- in non-union workplaces, as well. mediation , needs to be seen, continued to be seen, as normal, legitimate, and trust-- in a trusted way of managing conflict.
It should not be something that the parties, as we've heard today, turn to only after every other option, uh, has failed. So that's one. second, what's required is a real reinvestment. This builds on Javier's comment on the public side of our system. And, uh, Dion's description of the Canadian system is inspiring, the kind of more robust public investments on this front.
At the federal level, as Javier noted, this means building on [00:42:00] the longstanding strengths of the FMCS, even with, some of the funding challenges that we've talked about. And at the state and local levels, this means strengthening mediation programs and, again, echoing Javier, better integrating them into the existing broader landscape, including FMCS.
We can fix, our fragmented and uneven system a bit, and this time, uh, might be a good moment to do so given the strain that we've been talking about. We're labor relations, uh, scholars, uh, a-and practitioners, and so we believe that strong public institutions really matter, especially in a moment of polarization and extreme adversarial relations between labor, and management.
Third on my wish list, we need to think more seriously about bridging the divide between union and non-union, system. The world of work no longer fits neatly into this binary or bifurcated model, and it maybe never really did, but our dispute resolution architecture system still does. It fits very neatly into a unionized, [00:43:00] non-union model.
Going forward, we need to think of mediation frameworks that can be more flexible and better suited for collective conflicts, whether they happen in or outside, the traditional union setting. and I wanna maybe conclude by taking a little bit of ownership. Uh, you said where-- what are the solutions.
I think universities have a really important role, to play. We're here at Cornell University. universities, non-profits, uh, really need to step up in addressing all of the challenges that we've mentioned and in helping to facilitate the solutions, that we've talked about. So first, Two things we do well at universities. One is we do research. there's been a longstanding tradition of studying conflict management in the labor, uh, in unionized setting and in the non-union setting. But a lot of it not so much in the mediation space. We've extensively studied arbitration, your work, uh, included of course, Alex.
but there's much more that we can do in terms of studying what works and what doesn't work in mediation, both as a practice, but also the system that we've been [00:44:00] describing, today. So that's one thing universities, can do. And then to this capacity building area that we've been talking about in terms of, training.
We have an important role to play in training the next generation of mediators, of neutrals, of dispute resolution professionals at places like Cornell, but also in collaboration with the Labor and Employment Relations Association, with the AAA, the American Arbitration Association, and others. This is an exciting time to be studying and working in, uh, dispute resolution.
There are a lot of challenges as we've spent our time talking about. We should be part of solving those problems.
Alex Colvin: I, I do think that's an important role that universities can play. Dionne, uh, going forward, what directions?
Dionne Pohler: Yeah, well, I, I mean, I completely agree with Ariel and Javier that we need to expand, publicly funded mediation. and I think it's, it's not just for the sake of it, it's actually money incredibly well spent.
I mean, the, efficiency losses, the lo- the impact on the economy of these kinds of disputes, and conflicts in both the union and non-union workplaces and [00:45:00] environments is just massive. And so I think it's money that, that pays, it, it pays for itself, really, um, expanding publicly funded mediation.
I also think that this access to mediation should be widely available beyond the traditional union settings as, both Ariel and Javier pointed out, and I just want to emphasize the need for sh- uh, strong training pipelines. I know this has come up a few times. Um, a critical piece is people.
We really need to ensure that there's a strong pipeline of trained, experienced mediators who have deep knowledge of labor relations and workplace dynamics, because mediation has to n- not just be accessible, but it also has to be credible and reliable. People have to trust it. and that really depends on the quality, preparation, and legitimacy of the mediators themselves.
And so to your point, Alex, i- in addition to sort of our, programs, at the university, we do a lot of outreach training. The Scheinman Institute does a lot of training of the next generation of mediators and arbitrators. Um, and we also offer training for those working, in labor relations and in conflict resolution more broadly.[00:46:00]
So, um, that's another avenue. and I think because workplace conflict is increasing, to Ariel's point, we need researchers to study mediation more and understand what works and what doesn't. but I also think we have to think about how workplace conflict is intersecting much more regularly and more integrated with broader societal conflicts.
So workplace conflict itself is fundamentally shifting, and this needs to also shift how we think about and teach conflict and what skills are necessary for the mediators of the future.
Alex Colvin: Great. Well, we've got a couple of, uh, audience questions, first off, about, uh, peer mediation.
Um, uh, somebody asked about how we feel about developing peer mediation systems as a way of building trust in mediation. So I've heard this has been used in schools, I know as one context. Some workplaces have done that kind of training. May- maybe Ariel, do you wanna comment on that?
Ariel Avgar: Yeah. Um, very, excited about, peer, uh, mediation.
I think there's a lot of potential. We've been talking about capacity and where it exists. Well, one way to engage in capacity is to [00:47:00] train peers to serve as mediators within, organizations. At Cornell, we've done this. we've developed a faculty peer mediation program. We've also done this, for our students.
It's a way not only to prepare capacity and develop capacity for, resolving conflicts, but to develop the kind of skills and muscles and competencies across the organization. Peer mediators become better conflict resolution, uh, better at conflict resolution themselves. They help others, uh, become better at this.
There are structured ways to bring in peer mediation programs into organizations. and they're another way in which we can actually break down this divide between union and non-union. They're often a very effective way of integrating mediation into non-union, environments.
Alex Colvin: uh, connects to another question we got, which is, uh, that issue c- comparing union and non-union conflict resolution, and the challenge of how this applies, in situations like non-union right to work states where employees lack rights or power, right?
And then how do you deal with conflict resolution, in, how [00:48:00] you think about conflict resolution in that setting. Do you wanna, follow up on that one, Ariel?
Ariel Avgar: , so clearly there are, structural challenges in make, making available the type of mediation that's available in the unionized setting to non-union workers.
And the, person asking the question is absolutely right. There's a fundamental imbalance of power in the non-union setting. This doesn't mean, however, that we should not try to incorporate more productive and effective ways of resolving conflict, especially for collective action in non-union, settings.
Our system is currently not set up to do that. I'm sure Javier has, uh, some thoughts on this. Um, but there are ways to maybe try to kind of increase the mandate for institutions like FMCS, uh, and so forth. One fear that we have, and I think this is what the questioner is asking, is how do you engage in mediation without the backing
of a union? That's a challenge, but if we have good institutions, public institutions that are making this available, that system starts to look more similar, to systems in other countries where non-union and union workers have [00:49:00] access, to mediation.
Alex Colvin: Javier, do you wanna jump in on that?
Javier Ramirez: I think Ariel is right there. And, and, and the complexity also is that if we don't have those strong public institutions, there's no way a system can be propped up with just private.
it's just not gonna happen. The, the costs are gonna prohibitive. So I think that looking through model where it's either staff folks that are funded, and available to do that, or a Dionne's system there in Canada, right, where we have the private folks, a, a cadre of private folks that can, take some of that work for a set fee and, and help out there.
Yeah,
Alex Colvin: Dionne, jumping over to Canada.
Dionne Pohler: Well, I mean, one of the, challenges, of course, in, extending sort of these, these, uh, the, the institution of mediation as it's been developed in the unionized context to the non-unionized context, in our research project that we did where we were talking to mediators who were, had most of their experience in the unionized context about whether or not they, you know, would be willing or go into those kinds of contexts, and, and these [00:50:00] were state mediators, one of the challenges is that, th- that that can actually undermine their credibility in the, in the unionized context-
because they're sort of viewed then as sort of potentially undermining the likelihood that workers will actually join a union, and so they want to kind of be able to maintain that sort of separation. But I think to that point, there could be sort of systems set up within government agencies that have sort of separate purposes or objectives, and that there's maybe, different mediators that actually specialize in the non-union, side and, and, and mediators who specialize in the union, in the union side.
But I do think that's a bit of a tension that we have to kind of acknowledge and address, in how to sort of structure these things going forward. But I also agree that it, it does have to be publicly funded or else the access will be very, very limited in, in the non-union, case.
Alex Colvin: Yeah, there are certainly some interesting examples in other countries.
I think particularly countries I've done some research on Ireland, there's a Workplace Relations Commission, Australia, Fair Work Australia, which are public commissions that, uh, deal with [00:51:00] both union and non-union, workplaces, but there's a very strong public framework and public rights that undergird, those agencies.
So, that allows, I think, the workplace conflict resolution to work more effectively, to your point, Javier. Uh-
Javier Ramirez: Yeah. Yeah, one, one thing that I would add to that is that to Dionne's point, we actually saw some of that resistance when I was at FMCS of trying to get involved in some of the non, uh, union areas
where the, some of the tension of should, should FMCS be in that space. So absolutely, those conversations are gonna have to happen, to see how we could expand those offerings.
Ariel Avgar: Yeah. Yeah, just a quick comment on that. We're so used to the system we have that's been with us for so long- that it's often hard for us to imagine a different system, one in which institutions like the FMCS are available for a broader array of stakeholders.
One of the silver linings of this crisis moment that we're in, the strain that we've described today, is maybe it's an opportunity for us to rethink some of the longstanding assumptions we make about the institutions.
Alex Colvin: Yeah, and sometimes within crisis lies opportunity, [00:52:00] right?
Ariel Avgar: Exactly.
Alex Colvin: okay, we're getting towards the end of the time, so one last takeaway from each of you.
what would you like our audience to take away? Javier, why don't you go first?
Javier Ramirez: Uh, y- you said one. I ha- I, I have a few, but- ... I guess the, the-
Alex Colvin: Gotta edit yourself down
Javier Ramirez: ... the one that the... Yeah, the one that I, I would take is that the, right now, the need for that greater communication and collaboration between federal, state, and private players.
There, there is uncertainty in the system right now, and in order for us to be there f- as public servants to the labor management community, we're going to have to have that greater communication and collaboration.
Alex Colvin: Yeah, great. Ariel.
Ariel Avgar: I'll collapse a couple of things into- Okay ... my one thing. Uh, we've talked a lot about the challenge of our system.
But our system also has some real strengths- Yeah ... uh, in dealing, uh, with complexity. so we wanna sort of maintain the areas where our system is strong and think about ways in which we can strengthen it. the dispute resolution in the unionized, setting has been remarkably stable over a very long period of time, very [00:53:00] resilient to many different, changes.
But it appears as though this might be a good time, back to the earlier comment we just made, to revisit, uh, some of its core features, uh, in the face of a dramatically changing labor and employment context, changing workplaces and so forth, including the ability to support conflict resolution, um, in unionized and non-union environments.
Alex Colvin: Yeah. Dionne, last takeaway from you.
Dionne Pohler: So I think if we don't invest in capacity now, we're gonna feel it later. we need mediators who are well-versed in how broader social and, political dynamics are playing out in the workplace. I think the risk isn't just that there's more conflict. It's more complex conflict without the capacity to resolve it effectively, so I think we need to invest.
And just one other takeaway. I, I don't think that this is a temporary spike in conflict that we're seeing. I think it's really a fundamental structural shift in how and what kinds of conflicts are playing out, and so I think we're gonna have to address it sooner or later.
Alex Colvin: Yeah, that's a great final word.
Conflict doesn't [00:54:00] disappear. It changes forms, but it's something that we're gonna have to continue to deal with going forward. We have t- the capacity and the systems to do that.
Dave Keslick: Thank you for listening to Cornell Keynotes. For more information about this subject, check the episode notes for details and enrollment information. For future Cornell Keynotes, subscribe to stay connected. Thank you for listening