Using a Facilitator for Negotiations

Is a facilitator a useful investment in labour negotiations? Can a facilitator assist with relationship building during bargaining? What is the difference in the role of a facilitator versus using a mediator?

Facilitation is defined simply as “the act of helping other people to deal with process or reach an agreement or solution without getting directly involved in the process, discussion, etc. yourself”.[1] Therefore, “a facilitator is someone that supports and makes it easier for a group of people to work together towards a common goal”.[2] Facilitators assist people to communicate more effectively and reach consensus. They also ensure only one person speaks at a time, everyone who wants to speak is heard and the parties remain focused on the issue to be resolved.[3]

I have had the opportunity to experience facilitated negotiations both as a negotiator and as a facilitator. When Interest-Based Negotiations (IBB) were popular, facilitators were used from the beginning to first educate the parties and then facilitate bargaining. The facilitator was the key to keeping the parties moving forward, staying constructive, and focusing on not resorting to traditional positional bargaining. For several reasons, not for this discussion, labour negotiations rarely rely on IBB anymore; however, the role of a facilitator has continued particularly where the parties have a difficult relationship.

When I facilitate, I am guided by the lessons learned in IBB and as a facilitative mediator, where the facilitator must always remain neutral and have union-management/negotiation experience. To be effective, facilitators “need to demonstrate independence and integrity so that a relationship of trust can be developed”.[4]

Through the negotiation process, facilitators ensure:

  • All relevant information is shared in a manner that is both understandable and can be validated.
  • The parties define their own objectives and make their own informed decisions and choices.
  • The parties feel ownership for their decisions and find their decisions satisfying and meeting their needs.[5]

Facilitators guide the process in consultation with the parties involved. I always begin with the parties developing their own ground rules for behaviours during bargaining, including separating the person from the problem. As a facilitator, I can rely on these ground rules when bargaining gets difficult and use them to guide the parties through those difficult discussions and decisions.

It is essential for the facilitator to understand the parties’ history – in bargaining and in their relationship that could impact negotiations i.e., key grievances, litigation, ongoing communications, etc. If I am new to their relationship, I request an opportunity to meet with each party separately to hear their history, expectations, and needs for the current negotiations, meet the key individuals, and build a working relationship. I also ask the parties to start thinking about their settlement zone and BATNA (Best Alternative to a Negotiated Agreement) early in the process.

Based on my learnings, I then work with parties to design their bargaining process. The process could include:

  • Establishing bargaining dates
  • Providing opening statements
  • Developing ground rules
  • Developing communication protocol to their parties and/or press during bargaining
  • Exchanging proposals and information sharing/disclosure
  • Direct bargaining and timing
  • Bargaining conclusion
  • Next steps if no agreement
  • Ratification
  • Post-bargaining reflections

Depending on the parties, I have found some of these stages are set out in my contract or agreement to facilitate.

Can a facilitator assist with relationship building during bargaining? Is a facilitator a useful investment in labour negotiations?

My answer to both questions is absolutely yes.

I have never been contracted to facilitate negotiations between parties with great relationships. Negotiations are typically adversarial in goals and can be complicated even when the parties have good working relationships. Where parties have little trust and a poor relationship, there will be reluctance to share information and collaborate during bargaining to obtain mutually satisfactory outcomes. Investing in a facilitator can be the first step in the parties changing their relationship.

While a facilitator is a guide, they can also provide the parties with education and other assistance during negotiations. Facilitators listen carefully to what the parties are saying and watch body language. This can be extremely useful when the parties are discussing contentious issues and may not be actively listening or watching the other parties. What I hear and see can be useful as I assist the parties. As a neutral, I can see and hear settlement opportunities because I am not emotionally vested in the outcome.

Where the parties are discussing issues constructively and effectively, I do not intervene. These are the building blocks for the parties’ relationship moving forward. However, when discussions become heated and unproductive, I will intervene. When I intervene, I will use my skills to de-escalate the situation by reframing the conversation or asking a question. If this is not effective, I will suggest the parties’ caucus. The time in caucus provides an opportunity for the parties to vent independently and for the facilitator to assist them. In caucus, I may ask questions to understand the dispute better or provide information that I heard/saw to help them understand a shared interest or option that was lost in the heat of the moment. The options come from the parties, not the facilitator.

As the parties move through negotiations and become more difficult, the parties need to keep communicating and discussing possible options for settlement. The key for the facilitator is to maintain engagement to ensure the parties are open to settlement. I find this is the point in facilitation that is often the most difficult but important time for the facilitator, as it is the time when the facilitator’s subject matter expertise can be the most important. This expertise can be used to ask probing questions to the parties’ individually or together to assist them with problem-solving (i.e., what has their research demonstrated is the normative wage increase, what other collective agreement language exists in the sector that addresses their needs, etc.).

What is the difference in the role of a facilitator versus a mediator? 

While the role of a facilitator is set out above, a mediator’s principles are the same, but instead of facilitating, a labour mediator will evaluate the situation and push the parties to settle. This is done by suggesting options and opinions, and advising based on their subject matter expertise and possibilities based on normative settlements.

A labour mediator will exert control over the process, as the parties rarely meet in full, face-to-face negotiations but rather in small groups or alone using shuttle diplomacy. The mediator will be vocal with the parties about their offers and positions. The mediator will often provide the parties with an opinion regarding the likelihood of success of their BATNA and the risks of not settling but in the end, the parties still control whether to settle or not.[6]

It is important to note it is possible to have to facilitator change roles and become a mediator. If this is the desire of the parties, they should consider this option before selecting a facilitator to ensure they are willing to become a mediator. The advantage of this dual role is it can save time and money in bargaining because the facilitator is aware of the background, proposals, items in agreement, and outstanding issues versus bringing in a mediator who would need a briefing on the situation and progress to-date.

In conclusion, in a complex labour relations environment, using facilitators to assist the parties in relationship building, including negotiations and day-to-day labour relations, can offer the parties an opportunity to save costs. Facilitators can help the parties to collaborate and find their own settlements and time-effective solutions to a wide range of issues such as a backlog of potentially expensive grievance arbitrations, turnover issues, and negotiations.

About the Author

Beverly Mathers

Beverly Mathers is a mediator/facilitator/workplace investigator who specializes in employment, workplace and labour matters. She conducts mediations for grievances or disputes, labour negotiations, interest arbitration, employment matters, health and safety, pay equity, and pensions and benefits including disability benefits. Beverly began her career as a Registered Nurse, becoming a health care labour leader and then Chief Executive Officer at the Ontario Nurses’ Association.  She holds a diploma in Registered Nursing from Seneca College; a Bachelor of Arts in Labour Studies from McMaster University; a mediation certificate from University of Guelph; a Master of Arts from Royal Roads University in Organizational Conflict and Management; a certificate in Leadership Excellence from Queen’s University IRC; and Workplace Investigations Training and Certificate Program from the HRPA. She provides mediation using an evaluative or facilitative style depending on the situation and the desire of the parties, and neutral facilitation for workplace conflict management, dispute resolution, negotiation and relationship building.

 

[1] Facilitation | English meaning – Cambridge dictionary. (n.d.). Retrieved January 19, 2024, from https://dictionary.cambridge.org/dictionary/english/facilitation.

[2] Nauheimer, R. (2022, August 3). What is facilitation?: Facilitator school. Retrieved January 19, 2024, from https://www.facilitator.school/blog/what-is-facilitation.

[3] Stitt, A. (1998).  Alternative dispute resolution for organizations: How to design a system for effective conflict resolution. John Wiley & Sons Canada Limited, Etobicoke, Ontario.

[4] Barrett, J. T., & O’Dowd, J. (2005). Interest-based bargaining: A users guide. Trafford Publishing, Victoria, BC, Canada. (p. 91).

[5] Barrett, J. T., & O’Dowd, J. (2005). Interest-based bargaining: A users guide. Trafford Publishing, Victoria, BC, Canada. (p. 92).

[6] Holland, E. (2020, August 31). Understanding the top 3 styles of Mediation with ADR Times. ADR Times. Retrieved January 19, 2024, from https://www.adrtimes.com/styles-of-mediation/.

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