Employment Laws

Mediation for Public Employers and Employees

Please note: the Department of Labor and Regulation is involved in labor mediation only for public employers and employees, such as school teachers or firefighters. The Department does not have jurisdiction over other labor unions and their mediations.

During contract mediation, the Division of Labor and Management meets with disputing parties, acting as a neutral party to help settle the dispute. The Division cannot force the parties to agree, but it can help them discuss their problems candidly and lead them toward a solution.

Requesting Mediation

Public employees (such as school teachers or law enforcement officers) have the right to choose a representative to negotiate employment conditions on their behalf. When public employers and the representatives of public employees cannot agree on the terms of an employment contract, they can ask the Department of Labor and Regulation to mediate the dispute.

Mediation can be requested by either party only after either party declares an impasse (an irresolvable situation) in writing. There is no specific form for the request, but it must be sent to the Division of Labor and Management in Pierre no later than 10 days after the declaration of impasse.

An exception to mediation procedures occurs if the concerned parties are a school district and the affected teachers. If these parties cannot solve their dispute but no one requests a mediation, the district must impose its last firm offer, including tentative agreements. This enables a school year to start or resume despite the conflict.

Preparing for Mediation

Each party must have someone available at the mediation who can bind the party to tentative agreements.

Each party should identify the rationale behind each disputed issue.

The parties are free to continue negotiations until the mediation session begins.

The Division prefers to have three rooms available, one to meet with both parties and one each for meeting with the parties separately.

Holding Mediations

Mediations are held wherever convenient to both parties. We have held mediations in school buildings, courthouses, banks and even house trailers. The Division prefers to schedule daytime meetings during the week (Monday through Friday) but understands that evenings and weekends are sometimes necessary. Generally, mediations are scheduled one to two months after the request is made.

The mediation format is entirely in the control of the mediator. Often the mediator starts by bringing the parties together to identify the issues to be resolved, then meets with each party separately (called "caucusing") to get more information. There is no time limit to mediation, but usually only one session is necessary. The mediator uses various techniques designed to:

Help the parties understand each others' positions.
Find the ideas needed to solve the problems.

If mediation fails, either party may ask us to hold a fact-finding hearing on the unresolved contract issues. You must make this request no later than 20 days after mediation fails. Generally, the hearing is scheduled one to two months after the request. We will send you advance notice of the hearing date and the location in Pierre.

Fact-finding hearings are very informal. The rules of evidence and administrative procedure do not apply. The hearing officer will accept any form of information the parties wish to provide about the issues in dispute and the rationale for the parties' positions. At least one representative from each side should appear at the hearing. If the hearing officer determines that further negotiations would be helpful, he or she may authorize a break from the hearing to do that.

The hearing officer prepares the fact-finding report within 72 hours of the hearing. The report will list each of the disputed issues, a brief explanation of the circumstances involved and a recommendation to resolve them. The report will be sent to the parties, and to a local newspaper, which is free to treat the report as it would any other unsolicited item.

The Division's recommendations are non-binding suggestions, which may be rejected by either side of the dispute. If the public employer rejects the recommendations, it is free to impose its last firm offer. It is important to note that to have done so at some earlier point in the dispute may be evidence of bad-faith bargaining under the law.

Disclaimer

The information provided on this page should in no way be considered legal advice. For specific information about your legal rights, you should consult your personal attorney. If you have a general question, contact us.

Marcia Hultman

Cabinet Secretary