Mediation in Minnesota

The Minnesota Orchestra lock-out – the longest second-longest formal lock-out in our industry’s history – may have entered a new phase, according to Graydon Royce of the Minneapolis Star Tribune:

The Minnesota Orchestra’s management and musicians — now in the 11th month of a bitter labor lockout — are quietly talking again behind the scenes.

Multiple sources close to the dispute say representatives of the two sides met with an independent mediator this week to see whether ground rules can be set for formal bargaining. The mediator idea arose from private conversations with Gov. Mark Dayton, these sources say.

No agreement has been reached, and significant hurdles remain for negotiators who have staked out positions with scorching public rhetoric. Both sides will decide within the next week to 10 days whether they can work with the mediator.

A shift in tone became apparent on Wednesday, when the orchestra canceled six summer concerts. Absent was the spin and blame that has characterized the public-relations battle between management and the musicians, who have refused to come to the bargaining table unless the lockout is ended. A mildly worded management news release provoked no sharp union response.“I think you can read between the lines,” said a spokesperson for the musicians.

The change of tone may actually be more important than the news about possible mediation. It suggests that the musician leadership believes – probably for the first time in over a year – that the management/board may genuinely be serious about reaching a settlement that was really negotiated between the parties, rather than imposed in its fundamentals by the board.

A mediated settlement faces major obstacles. Musicians continue to insist that the lockout must be lifted before they will return to bargaining. Management has refused that demand. The question arises whether those closest to the bargaining can overcome their personal feelings and enmity for opponents they have spent the better part of a year vilifying.

“Extra baggage makes negotiations more difficult,” said [John] Budd [of the Carlson School of Management]. “At some point, the parties have to put those emotions aside and figure out what’s going to work out economically.”

… Still, the mediation effort that has been started does not guarantee success.

“If one side or the other is so entrenched, then a mediator will not be successful,” said Budd. “If certain segments on each side believe enough is enough, then a mediator can be helpful. But they’re not magicians.”

That, and not the question of whether the two sides can “overcome their personal feelings and enmity for opponents they have spent the better part of a year vilifying,” is the key question. The musicians have demonstrated by their refusal to move closer to management’s proposal of a year ago, that they are both serious about forcing management to abandon its non-negotiable demand for $5 million reduction in the annual cost of musicians’ compensation, as concisely stated on the orchestra’s website:

While the Board has been clear that it seeks savings of $5 million annually, the approach we use to achieve these savings can be adjusted through the course of good faith negotiations. We need our musicians to participate for this to happen.

The real question to be answered is whether the board has really agreed to negotiate  the most basic issue in any labor negotiation, which is how much the workers are paid. There may be other questions as well, particularly if the musicians hold firm to their demand for a real audit of the institution’s performance, including the performance of the board and management. This, I believe, can be inferred from “both sides will decide within the next week to 10 days whether they can work with the mediator,” although that could also suggest that one or both sides are unsure of the mediator’s ability to be effective in the ways that both sides define “effectiveness” in light of their overall goals.

I had heard a couple of months back that there was a shortlist of industry insiders being considered for the mediation role. There are have been a number of successful instances of such mediation over the past few years (and in fact going back to the 1980s and the famous “SWAT Team” of Fred Zenone and Henry Fogel), including Tom Morris’ work in Utah and Peter Pastreich’s work here in Milwaukee and in Louisville.

But I don’t know if one of those insiders is the person that Royce says the parties are talking to now. It would be an extremely difficult job for someone from outside the industry to do, I think. A few months ago, Drew McManus suggested that George Cohen of the Federal Mediation and Conciliation Service would be a good choice as well, and he was entirely correct. George is a superb negotiator and mediator, and has done several orchestra negotiations as lead negotiator for the musicians (as well as most of the AFM’s media negotiations for many years). But he is more of a pure mediator than Tom Morris or Peter Pastreich would be. They, or someone like them, have the ability to tell management, with great credibility, just how they might be able to do better than than they’ve done so far. And that ability can go a long way to get a stuck negotiation off dead center when the big problem is management saying it can’t move. It also helps that they can credibly explain to musicians why management can’t move in their direction on some issues.

But, as the article suggests, what really matters at the end of the day is whether both of the parties are willing to enter into real negotiations. I’ve believed from the beginning that the musicians are willing to enter into such a negotiation so long as it’s not predicated on them agreeing, as a pre-condition, to commit suicide as a great orchestra. Whether the board is equally willing is yet to be seen.