Not all intractable conflict occurs between parties who have no formal negotiating relationship; it is possible for intractable conflicts to develop even where parties have shared a working relationship. But intractable conflict is less likely to arise when the parties have used their negotiation time wisely. In particular, parties who anticipate the likelihood of future conflicts, and create procedures to deal with them when they occur, are much less likely to find the tensions of subsequent conflicts destroying their ability to continue to work together.
A key element in such planning is often the establishment of a formal grievance procedure—a standardized set of procedures to follow when someone has a complaint or a problem. It is particularly important to have a grievance procedure when it is likely that people who were not direct signatories to the original negotiations will be affected by the implementation of an agreement. Employees, whether represented by a union or not, are frequently in this position, and the classic grievance procedures are derived from workplaces with unions. Many decades of experience have resulted in fairly standard grievance procedures that might well be utilized by people in other situations as well.
There are two key factors in establishing a workable grievance procedure. The first is the concept of a progression of levels at which a given complaint may be handled. Typically this begins with a step that provides for rapid and informal addressing of a complaint by those immediately involved, with appeals to successively higher levels of management or other representatives possible in the event that lower-level resolution doesn’t work. The second factor is the availability of an alternative procedure, to be used if several successive attempts at negotiation have failed. Typically this will be mediation, arbitration, or both.
Many grievances can be resolved quickly by correcting a misunderstanding, or with a simple negotiation. In this case the grievance procedure saves time, money, and the relationship between the parties. Having the issue handled by those immediately involved is a benefit as well, as they know more about the problem at hand than do people at higher levels.
However, a given grievance may involve a more difficult issue, or one or more of the parties may refuse to settle with a simple negotiation. The availability of appeals to a higher level not only provides an end to what might otherwise become frustrating bickering, but often serves to remind a given representative at any level that reasonableness at this stage will eliminate the need for review of his or her actions by someone higher up. Time limits at each step, so that no one can stall the process indefinitely, are typical. And in the event that the parties have discussed the matter at all levels provided in the procedure and are still deadlocked, an arbitration provision generally provides for a final decision by a decision maker that both sides have had a say in choosing.
A typical grievance procedure in a unionized environment might look something like this:
Any dispute which may arise from an employee or Union complaint with respect to the interpretation of the terms and conditions of this Agreement shall be subject to the following Grievance Procedure, unless expressly excluded from such procedure by the terms of this Agreement. All grievances shall be initiated at Step 1. Time limits set forth herein may be extended upon mutual agreement of the parties. The Union shall have the right to be notified and be present at all steps of the Grievance Procedure.
• Step 1: The employee, Union steward or officer, and/or the Union representative shall present the grievance to the most immediate supervisor who has the authority to make adjustments in the matter within 14 days of the alleged grievance or knowledge thereof.
• Step 2: If a satisfactory settlement is not reached in Step 1 within three days following its completion, the employee, the Union and/or the Union representative may present the grievance to the department head. Upon the request of said department head, the grievance shall be in writing and shall state the grievant(s) names(s).
• Step 3: If a satisfactory settlement is not reached in Step 2 within five days of the date of submission of the written grievance to the Department Head, the employee, the Union Committee and/or the Union representative may present the grievance to the Personnel Director. The Director or his/her designee shall schedule a meeting to be held within fourteen days of the receipt of the grievance by the Personnel Director with the Union Committee and/or Union Representative for the purpose of attempting to resolve the grievance. The Personnel Director or his/her designee shall respond in writing within seven days of the date of the meeting. Time frames may be extended in writing by mutual agreement of the parties.
• Step 4: If the grievance is not resolved at Step 3 the Union may within 14 days after the Personnel Director’s written response is due, serve written notice upon the employer that they desire to arbitrate the grievance, and the Union may request the Federal Mediation and Conciliation Service to furnish a panel of five arbitrators. Within ten days of the receipt of the panel of arbitrators the parties shall select an arbitrator. The Union shall make the first and third strike and the employer the second and fourth strike of names. The remaining individual shall serve as arbitrator and hear the dispute. The decision of the arbitrator shall be final and binding upon the parties. The cost of the arbitration shall be borne equally by the parties, except that each party shall be responsible for the cost of any witnesses testifying on its behalf. Upon the mutual consent of the parties more than one grievance may be heard before one arbitrator.
• Limit on Arbitrators: The Arbitrator shall have jurisdiction and authority to interpret the provisions of the Agreement and shall not amend, delete or modify any of the provisions or terms of this Agreement.
Note that here, as is often the case, the parties have provided for a final and binding arbitration phase at the end of the grievance procedure if nothing else has worked. Only a small percentage of all grievances filed end in arbitration, which keeps the overall costs of the system under control. Yet the availability of the arbitration mechanism provides a “fail-safe,” as well as a set of standards against which the reasonableness of proposals made in grievance negotiations can be measured: though only a minority of arbitrators’ decisions (generally known as “awards”) are indexed and published, over 50 years this has added up to thousands of published decisions — certainly enough that there are decisions on most issues that parties can turn to evaluate their own and the opponent’s proposals.
It is also possible that an intractable conflict that has already occurred (or more likely, a particular dispute in such a long-running conflict) might be submitted to a grievance procedure drafted specially for that occasion. The practical difficulty in doing this is that unless the grievance procedure already exists, the pressures of the dispute tend to discourage the parties from committing themselves to a new procedure. There have even been relationships in which the proliferation of day-to-day grievances overwhelmed the parties’ willingness and ability to use an existing grievance procedure effectively, and resulted in a larger, intractable dispute.
One of these situations, a relationship between mine workers and a mine owner that resulted in the single most strike-prone coal mine in the United States, became the basis for a fresh look at existing relationships and their capacity to create intractable conflict. The result was the development of the specialized field of dispute systems design. In that instance, a more effective grievance procedure was created, which took into account the special needs of the parties involved, and provided procedures that encouraged all concerned to make more effective use of their ability to negotiate with one another.1