By: Bruce Ally B.A., M.A., Ph.D., OCPM.
and Lavonne McCumber Eals B.A., M.E.S.

The Collaborative Negotiation Process presents an alternative to established dispute resolution methods for participants to engage in. Collaborative Negotiation allows a full discussion leading to an increased understanding of each of the disputants' perspectives thus increasing the likelihood of resolution. This process determines the range of possibilities for resolution by clearly defining all applicable variables. It outlines all the concepts thus enhancing rapport and facilitating a comprehensive understanding which brings everyone to the same page for decision making. By fostering the telling and hearing of varying perspectives it thereby creates an encouraging framework for addressing underlying interests while maintaining the integrity of legislative frameworks. The possibility of serendipitous results comes through the forum of better ongoing communication. In addition a stronger commitment to the shared work-related goals emerges through joint collaboration as opposed to the adversarial dictates which currently operate.

The detailed work and effort stemming from the Labour Relations Act has provided immeasurable relief to disputes within the employment sector. The Labour Relations Act architects should be commended for formulating a structure this complex but yet effective. The Administrators of the Labour Relations Act are stewards of our capitalistic society who are charged with the burden of upholding standards determined by law to be fair and reasonable.

Specific sections of the Act: Section 2 of Labour Relations Act, 1948 (the Act) and subsection 110(1) of the Act, 1995 have established the Ontario Labour Relations Board as an adjudicative agency of the Ontario government whose staff is appointed under the Public Services Act and charged with the responsibility of ensuring a fair and judicial process.

Thus it can be said that the Labour Relations Board's primary work is to administer the Labour Relations Act, 1995 and acts as steward of labour and employment relations. The Board undertakes its primary goal of attempting to resolve matters in a fair, practical, timely and effective manner disputes as they arise and are brought to their attention. Engaged and committed in the process, this leadership is maintained by additional relevant legislation outlining specific rights and responsibilities such as the Employment Standards Act, R.S.O. 1990 , Public Services Act, R.S.O. 1990, Environmental Protection Act. R.S.O. 1990, Fire Protection and Prevention Act, 1997, S.O. 1997 and the Occupational Health and Safety Act, R.S.O. 1990. All of which form the functional template for a number of collective bargaining acts and other acts dealing with specific issues such as Community Small Business Investment Funds Act, S.O. 1992, Education Act, R.S.O. 1990, Hospital Labour Disputes Arbitration Act and Smoking in the Workplace Act, R.S.O. 1990.

In addition, the Labour Relations Board's efforts must also meet the standards established by the Ontario Human Rights Commission. These standards promote equal rights and opportunities free from discrimination and are standards which supersede other legislative directives. The Labour Relations Board has the power to hear appeals under the Employment Standards Act and the Workplace Health and Safety Act but does not currently have jurisdiction over Human Rights issues. Therefore it can arise that a Labour Relations Board decision can be overturned by a later decision taken by the Human Rights Board. This is problematic on many levels. Given that time is a precious commodity when decisions get overturned this creates confusion and frustration for all involved. Participants experience a disconnect between what has been experienced and what is expected in legislation. This disconnect is further compounded by the extended time delay and additional costs resulting from the dual processes and procedures which unless handled properly cannot be pursed simultaneously.

Whereas the Labour Relations Act is seen as being carved in stone, Human Rights' matters require more fluidity, responding to the specifics of each set of circumstances. Whereas under the Labour Relations Act a worker's entitlement to severance pay, overtime, vacation is clearly demarcated; in contrast the element of harassment or sexual abuse cannot be accommodated. Be reminded that decisions made under the Human Rights Code can overturn decisions made under the Labour Relations Act. This possibility highlights a disconnect between the codes hence reinforcing the need for a Collaborative Negotiation Process in which fully trained mediators would recognize the appropriate area for resolution thus saving time, effort and money. When a Human Rights issue surfaces a fully trained practitioner will ensure a "voir doir" (a process within the process) occurs which is necessary and determinative. It then behooves the Collaborative Negotiator/ Mediator to initiate a discussion, assess the ability of the parties to maintain neutrality; to determine who is responsible for the emerging issues. Also to initiate discussions as to whether the team should be revamped to include participants responsible for decision-making and to discern whether those involved can suspend judgment.

Does wearing dual hats with different responsibilities affect the integrity of the process? With the skillful guidance of a fully trained practitioner of collaborative negotiation, the Human Rights issues can be resolved independently; while concurrently allowing the parties to return to concerns raised under the Labour Relations Act. By attending to the complexities involved in such cases the process can systematically proceed, step by step, coming to a fair and reasonable solution utilizing and conforming to the legislation outlined within each of the Codes applicable to every type of relationship imaginable.

At present, the entire process of bringing the parties to the table is arranged in such a manner that creates a polarized model of "us" versus "them". This added to the conflict in question results in an uphill battle in any attempt at resolution. Each side striving to win in the win/lose option can obscure viable alternatives through fear of opening ones' vulnerability. Therefore, to put it clinically, the issues need to be deconstructed to be dealt with appropriately. This means providing a process that goes beyond the work contract to arrive at an encompassing mutual goal.

Using a reductionism paradigm, the simple explanation: work hours for payment approach does not adequately address the complex issues of the work place. A holistic approach is required to bring additional options to satisfy the dispute. The Collaborative Negotiation Process encourages opportunity for both parties to have input into a process overseen by a neutral third party who is encouraging each party to become an active collaborator. According to one expert in the field: " The collaborator raises issues and tries to engage the other side to solve the problem with them. While they are persistent in getting their interests met, they are also prepared to work on the other party's interests." Therefore, as stated earlier, the parties' labour relationship is a work contract aimed at all the factors affecting the mutual goal of production/ service interests for payment. This contract does not necessitate a complete agreement nor does it dictate exactly how to achieve their mutual goals.

As suggested, their preferred pathways are likely to have differing details and although either side can exert a strong-arm effect on the other, one might even say the Employer generally has the advantage. This advantage can encompass both the financial and contextual components of being situated within the larger societal business context. Operationally this tends to have more weight in determining a favorable outcome that will ensure the continuation of the business. On the other hand, the Employees' advantage is that they bring their abilty, experience, skills and are a ready labour force. If the business were to close both sides would suffer. This suggests the continuation of the business can and should be mutually beneficial. Predicated on this premise it therefore behooves both sides to ensure the continuing functionality of the company. One can conceptualize this paradigm as a coin with each party looking at it from the obverse side with management being one and labour being the other. The coin's value is fixed, neither side can function independently or is of more value than the other. This contrasts with the adversarial system which seems to suggest the heads or the tails side of the coin are in competition and can exist independent of each other.

One example that illustrates the need for a clearly managed process is as follows: an Employer might prefer to pay the worker less, charge less for the product/ services and increase sales thereby increasing the company's connectiveness to the market place. The Employee, on the other hand, might prefer to be paid more and feel more valued. Being denied advancement opportunity might result in a disgruntled exit, loss of expertise, a handsome severance package and an ex-employee who may speak ill of the business and its practices. One must question whose needs were met and is this the best possible outcome?

The underlying financial interests seems to be at either ends of the continuum, polar opposites which are inherently conflictual. To decrease and resolve this conflict the Labour Relations Act and the Employment Standards Act work together through

1. Blaine Donais B.A., L.L.B., L.L.M., RPDR, C.MED Workplaces That Work Canadian Law Book, 2006 p.293

Board efforts to set an acceptable standard and create a framework for both unionized and non-unionized workplaces. These acts provide a base line for resolving many disputes. For example the Public Services Relations Board provides an analysis of financial decisions with respect to wage increases that have been determined. This gives negotiators a platform from which to compare wage increases across the sector and informs arbitrators as to what decisions are currently reasonable should the process proceed from conciliation, perhaps through mediation to the arbitration decision-making. The Labour Relations Act and the Employment Standards Act also set the bar for minimum wage, hours of work, vacation, public holidays, leaves, and employee termination and severance pay.

The Labour Relations process offers layers of dispute resolution options with formal appeals should the results be unsatisfactory. What causes unsatisfactory results? Again each side brings their own context and perspective as to the considerations and the weight applied to these considerations. Commitment to oneself and one's enthusiasium to see one's interests as the best possible results, pushes a discrediting of the perspective and consideration of others, who do not support or match our own perceived best possible results. This causes conflict despite the legislations' attempt toward clarity, therefore polarity can occur. Like many unattended issues in a dispute, differences can escalate into a crisis. The point at which diminishes common ground is missed.

Communication and collaboration must be reestablished in order to promote amicable outcomes, therefore a skilled, neutral third party can assist communications to everyone's benefit. Each side has an understanding of the circumstances leading to and comprising the area of dispute. Rooted into their perspective, asserting they know what is best, clear about what the other party should be doing and attributing intent to the other side based on their experiences, fears and expectations.

If everyone knows what is best then why is there a dispute? In the same way common sense is not so common. What is best is not best for everyone. Communication is the key for opening a shared understanding and a wise agreement/ solution. A settlement more likely supported and upheld by Employer and Employee alike. Many people prefer to avoid conflict giving rise to the tendency to reach agreements before full discussion has happened. This can result in agreements where each side has their own interpretation as to what was upon. This divergent opinion of the same agreement creates a cultural dissonance which is the experience of understanding the context of the dispute without mutually sharing that awareness with the other party.

Using the Collaborative Negotiation Process can work to increase mutual understanding, both in the context of the dispute, the legislative parameters, Collective Agreements and workplace policies as they exist, as well as an open awareness of established lines for decision-making. Neutral interests may sound like an oxymoron when considering conflict but consider how effective your communication process was in an intense dispute that degenerated into insults. Now recall a dispute where parties remained calm and addressed your issues as well as their own.

In the Collaborative Negotiation Process, the neutral facilitator can assist the parties in achieving the opportunity to present their perspective, to understand the other's perspective, consider the legislative framework, discuss their options and arrive at a mutually agreeable, wise solution.

Bruce Ally is a mediator for the Mandatory Mediation Program in Ottawa, and is on the Windsor, Toronto and Ottawa Rosters. He has had over 20 years of experience as a mediator and participated in over 1,000 mediations.