DO FMCS MEDIATORS LIE?
That’s a tough question to answer when you know so many totally honest and honorable mediators, but the hard lesson we learned was that there are some who will. So, negotiators, especially union negotiators, need to keep that in mind when dealing with them and protect themselves. Here is an only slightly hypothetical set facts that showed us how easy lying can come to a mediator.
The agency invoked mediation after a very short period of unassisted bargaining because it was very eager to contract out some work currently done by very low graded employees. The union blocked the agency’s path to quick implementation of the contract by using package bargaining to tie the contracting out issue to three other agency-proposed mid-term changes of little importance to the union but great potential bargaining complexity, if needed the union chose to negotiate over them.
When we showed up at FMCS, we learned FMCS had decided to bring in someone from another office and higher in the chain of command to work our dispute rather than put a local mediator on it. That should have been our first hint that something out of the ordinary was about to happen, but we accepted the mediator’s explanation that the other staff was too busy. (Let’s label that Lie #1, but excuse it as one of those “white lies” that polite people excuse.)
The mediator quickly told our team that he could see that the union was going to prevent the contracting out issue from going forward to FSIP anytime soon by demanding bargaining and thorough mediation, or agreement, on all four issues. Actually, he complimented the union on its strategy. However, he then asked for a personal favor. He wanted us to address the three issues unrelated to the contracting out issue and settle them so that the parties could focus just on the contracting out issue. He promised, in return, that if the union did that, he would hold the agency at mediation for as long as it took to very thoroughly address the contracting out issue. He made it clear that the union’s delaying strategy would not suffer a bit by following his lead. It was a tough call for the union because the impacted employees were all lower-graded and almost all women and minorities. They were not going to find replacement jobs easily if the agency was able to contract out the work. But having been raised in the LR field with great respect for FMCS mediators, at least until that point, we decided to take the mediator at his word. Big mistake. HUUUUGE BLUNDER. WILL NEVER DO IT AGAIN.
The next day we wrapped up deals on the three midterm issues unrelated to the contracting out, getting pretty good provisions in the deal. The following day was supposed to be the first f many days and several separate trips to Washington to deal with the contracting out issue on which thousands of jobs depended. That never happened. The mediator almost immediately let us know that he was releasing the dispute to FSIP without any further discussion of substance. There was no question about it; he had outright lied to us and a few thousand union members were about to lose their jobs because he lied. It was virtually certain that FSIP would take the case up quickly and clear the way for the contract, which is precisely what happened. The union lost the time it needed to get to enough people on the Hill to screw up the courage to stand in the way of the Midwest Republican Senator who was driving the contracting despite a vast amount of evidence that an outside contractor would fail if it tried to do the work at the cost for which the feds did it.
Yes, the union team was furious, but the traveling, lying mediator also announced that he was now urgently needed back home and left town in a cloud of dust. Some might call that the actions of a deep-seated coward, and we would agree. Personally, I hoped he would choke on a blueberry on his ride home. Forgive me God.
We complained to the FMCS director who arranged a meeting with the lying mediator and his boss, but that went nowhere. We pointed out that this dirty trick screamed of racism given that most of the employees were minorities, but apparently the FMCS leaders are not oriented to think in terms of how a mediation decision can particularly screw over a race, nationality or gender of folks. FMCS closes rank to protect its own as fast as any other ethically-defective organization in town.
In retrospect and for the benefit of those who find themselves in this situation in the future, our best advice is NEVER, EVER trust any FMCS mediator. Yes, that is harsh and probably overkill, but those folks can rip the bargaining strategy rug right out from under a union if they feel like it. If asked to make a similar deal, duck, dodge, dart, and disappear if necessary before ever giving up what is the most powerful bargaining tool that both sides regularly use, namely, the ability to delay a deal. (I have also often thought that I should have used my IPhone to video him making the promise and demanded the keys to his car.)
So, to all you union negotiators just coming into the field or who have yet to be lied to by FMCS, take this single story as a warning not to be as trusting as we were. Mediators can lie and the entire organization will stand behind them when they do. Ironically, when we asked around about this particular mediator we learned that his colleagues thought almost as little of him as we did.
P.S. Although the contract was awarded and the employees RIF’d, the contractor fell flat on its face trying to do the work and defaulted after cashing its start-up funding check. It could not hire enough people at the rate it was offering. So, it cost the federal agency tubs of cash to hire a new workforce to undo the damage the contractor had done and get up to normal operating levels. Along the way a lot of lives and families were torn apart by the work of this lying mediator.