How to kill a mediation

Something quite unusual happened in Louisville last week; a mediator called one of the parties to the mediation a liar in public.

It was, of course, phrased more diplomatically than that:

Mediator Henri Mangeot presented both sides with a contract proposal Thursday that was ultimately accepted by the orchestra’s board and management, but rejected by the musicians, according to a release Thursday night from the orchestra…

Orchestra officials said Mangeot’s proposed contract would have added nearly $1 million in pay and benefits for the musicians over the next five years, immediately increasing the number of salaried musicians from management’s proposed 50 to 54, and increasing that to 55 musicians in years four and five of the contract.

“Although the mediator’s proposal goes beyond a cost level that we believe to be our reliable income, we became convinced this represents a compromise that both sides would have to make work,” Louisville Orchestra board president Chuck Maisch said in the release. “Mayor (Greg) Fischer strongly urged us to consider this in order to reach a resolution that would restore the Louisville Orchestra for the community.”

But Mangeot, who is executive director of the Louisville Labor Management Committee, denied in an interview Friday that he had presented what the orchestra’s press release called a “final proposal.”

“It was not necessarily a final proposal,” he said. “I made a mediator’s proposal to the musicians’ bargaining committee, and after some very cordial discussion, the committee took the same position it had earlier, that they wouldn’t enter into a contract that left some of their people without jobs. I hate to use the word ‘rejected,’ and my presentation was made to the bargaining committee. The union that the musicians belong to has a rule that the membership has to have time for review; and as far as I know, this never went to the full membership of the musicians local.”

Mangeot denied that his proposal to the musicians’ bargaining committee included nearly $1 million in increased pay and benefits for players over the next five years, as the orchestra management’s statement said.

“I did not cost it out in advance,” Mangeot said. “Obviously somebody did, over a five-year period, but I really can’t speak to that. The pay raises that I proposed, and that had been talked about earlier on in the process, were contingent on accessibility of the endowments, which are frozen right now, because some of the money was used in the bankruptcy reorganization plan…

The orchestra’s release said that, “according to the mediator,” most of his terms were agreeable to the musicians, but they refused to accept a slightly smaller core of salaried musicians.

In short, an idea of the mediator that the mediator himself said was not costed out, wasn’t a final proposal, and wasn’t voted on by the musicians, was publicly trumpeted by management as a generous increase accepted by management over their previous offer but sadly, according to the management press release, “rejected” by the musicians. The management statement ends with the ominous statement that “it is regrettable that the musicians have rejected the mediator’s proposal, as the Orchestra stands ready to move forward on a sustainable basis to restore live symphonic performances to the community.”

Anyone who’s been involved in a labor mediation knows that a threshold condition for having a successful outcome is for the off-the-record nature of the process to be respected. Proposals floated by mediators are invariably what a wise negotiator once described to me as “would ya – could ya” proposals; what, in non-traditional bargaining, is called “brainstorming.” If the mediator cannot float a proposal to both sides without one side immediately running to the press with a misrepresentation of both the proposal and the other side’s off-the-record reaction to it, the process is strangled in its cradle.

Either the Louisville Orchestra board and management are really, really naïve about how negotiations work, or they’re not serious about negotiating a settlement, and don’t care how many mediators they burn through in the march to impose their “vision” of how much orchestra Louisville can afford on the musicians and the community. My money is strongly on the latter. They seem far too eager to “move forward on a sustainable basis to restore live symphonic performances to the community” without the actual Louisville Orchestra as part of the “restoration.”