Overview of the Mediation/Arbitration and Arbitration Process

Frequently asked questions:

Can I request that the Board try to settle my complaint before a formal hearing takes place?
Yes. The Board uses two methods of alternative dispute resolution-mediation and med/arb. Complaints are usually scheduled for mediation before a formal hearing, but mediation and med/arb are voluntary, so either side may decline to engage in mediation, in which case the matter is scheduled for hearing.

What is mediation?
Mediation is a method of dispute resolution where a neutral party brings both sides together to attempt to effect a settlement of the complaint. No evidence is heard and witnesses are not called. The person mediating the complaint may or may not be the person who will hear the complaint if the complaint is not settled. Discussions are based upon what both parties need to settle the matter. The discussions are confidential; the content of the discussions, such as proposals and counter-proposals during the mediation must not be shared outside that process.  It is important to prepare for the mediation to be able to explain to the mediator the basis for your complaint, and how you plan to prove your case if the matter does not settle.  Bringing documents, including emails, important to your complaint is highly encouraged.

What is med/arb?
Med/arb is a method of dispute resolution where the person who will hear and decide the complaint attempts to mediate a settlement to the case before actually hearing any evidence in the case. If the parties cannot reach a settlement, the merits of the complaint will then be resolved through a formal hearing.

Who conducts the formal hearing?
One member of the Board hears the merits of your complaint. The decision will be based on the evidence presented at the hearing and the applicable law.

How are these people chosen?
The members of the Public Service Grievance Board are appointed by Order in Council, based on their experience and understanding of the arbitration process.

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What happens when the hearing starts?
Basic overview:

• Preliminary issues.
• Opening statements.
• Calling of evidence - witnesses and documents.
• Closing arguments.

• Determining that the Board has jurisdiction. This means that the Board panel is convinced that the matter to be decided properly falls within its mandate as described in the Public Service Act. Sometimes the employer will object to the jurisdiction of the Board to hear a particular complaint. The Employer is required to clearly state the reasons for their objection. You will be given an opportunity to reply to any objection.
• Filing documents. A copy of the complaint and other documents not in dispute will be given to the Board member. All documents given to the Board throughout the hearing will be numbered as Exhibit 1, 2, etc. You will be given a copy of all documents. If either party has a dispute about any documents, the other party may be required to justify the reason for submitting it. In this and other areas, you have the right to object. You do this by stating your reasons for your objection.
• Agreed facts. Sometimes the parties submit a list of agreed facts to the Board in an effort to clarify the issue and save time. As the name implies, this requires your prior agreement.
• Exclusion of witnesses. Either party may make a motion for the exclusion of witnesses other than the complainant. The motion does not require the agreement of both parties and is normally granted without question. This is done so the later witnesses will not hear the testimony of the earlier witnesses. If the motion is made, potential witnesses are not allowed in the hearing room until they are called. There is one exception. Both parties are allowed to keep one individual of their choice in the hearing room as an advisor, even though they may be potential witnesses.
• Full disclosure. Fairness requires that a party to be affected by a decision be informed of the case to be met. Disclosure of facts by both sides enables a party to review the facts, to prepare a challenge to them, to obtain evidence that rebuts them or reduces their impact and to prepare submissions concerning them.

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How does the hearing begin?
After any preliminary matters, the first event is an opening statement by both sides summarizing the case. This gives the Board an overview of what is coming and summarizes for all parties the basis of the employer’s case and your case. This opening statement should be short and to the point.

Who goes first?
The party that bears the onus to prove their case goes first. This is usually the person who has filed the complaint, except in cases of discharge or discipline where the onus is on the employer. So, in cases of discharge or discipline the employer goes first; in most other cases you go first. This is important, because it stays this way throughout the hearing.

Is this where we get to the witnesses and introducing evidence?
Yes. If you bear the onus, you proceed first. The witness is called - that is you say, ‘Mr. Chair or Madam Chair - My first witness is Jane Doe’. The Chair will put Jane under oath. This means she is legally bound to tell the truth as she understands it. The questioning of witnesses has three and important distinctive steps.

• Examination-in-Chief: First ask the witness to identify herself and her knowledge of or relationship to this case. As you get to the body of your questioning, phrase your questions in such a way as to get the witness to give factual information. Since she is your witness, you will have had prior discussions with her and you probably know what she will say (remembering that she is under oath). Your questions must be neutral. That is, you cannot ask leading questions. A leading question is one in which the answer desired is apparent in the question.
• Cross-Examination: The other party gets to cross-examine the witness. They will try to characterize the evidence to favour their side. They have more latitude than the party calling the witness. They can ask leading questions, like, 'Isn't it true that you weren't wearing your glasses when you say you witnessed this event?' In some circumstances, where the witness is clearly unfriendly to the questioner, they can ‘badger’ the witness. You have the right to object if you believe the cross-examination by the other side is going too far. The Chair will decide.
• Re-Examination: This is sometimes called repairing the damage. You get another chance to ask questions. But, you cannot raise any issues not covered in cross-examination. Again, you cannot ask leading questions.
  
  When the other side calls a witness, they must begin with examination-in-chief and you get to cross-examine that witness, subject to their re-examination.

• As with other parts of the process, the party bearing the onus goes first. This is called argument-in-chief. In essence it is best presented as a review of the evidence, an analysis of the relevant policy or legislative clauses, and a review of prior cases that have dealt with a similar issue. The other party then has an opportunity to present argument-in-rebuttal. This consists of a reply to the presentation of the first party and a similar presentation in argument. Lastly, the argument in reply is the final comment by the original party. Of course, the comments are confined to issues raised in reply.
• Argument can only be made using facts which are in evidence, that is evidence which has been presented through oral testimony or documents.

• If the case alleges violation of a policy or legislation, you will need to suggest an interpretation of that policy or legislation for the Board. Often the case does not need such an interpretation. Most cases of discipline, for example, are based on the principle of ‘just cause.’

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Where do I find out about cases with similar facts?
The Public Service Grievance Board has an extensive collection of decisions which are available on the the CANLII website as follows:

• all decisions released 1998 to present
• precedent setting decisions and decisions that deal with jurisdiction of the Board from 1983 to 1997
• note that the decisions released prior to 1997 and posted on the CANLII site have been reproduced and may not include appendices, attachments or indexes as noted in the decision

Research access to the Public Service Grievance Board complete collection of decisions are available at our office location.

Is that the end?
Probably. Although after the award is released, the Board panel can remain seized. This just means that if the parties have a problem with the implementation of the award or in interpreting the award, the same panel will reconvene to clarify matters.

Any other advice?
The staff of the PSGB cannot provide you with legal advice, so if you think you require a lawyer, seek the advice of one experienced in labour relations. In any event:

• First and foremost - advance preparation is essential.
• Ask for full disclosure from the other party well in advance of the hearing so that you can prepare.
• Ask yourself - and the other side - is there any middle ground on this complaint? Is there any way to settle prior to the hearing? Quite often a mediator can be of valuable assistance. The Public Service Grievance Board can provide assistance in obtaining mediation.
• Research similar reported cases in order to prepare for the presentation of evidence as well as the closing argument.
• Plan the case, anticipating what the strategy and arguments for the other side may be.
• Plan your opening remarks, your questions and cross-examinations.
• Have contingency plans to deal with any anticipated position or strategy the other side may take.

• ‘Labour Arbitrations and all that’, by John P. Sanderson, Q.C. Canada Law Book. This is a source book for the lay person wanting to understand the arbitration process.
• ‘The Labour Arbitration Process’ by Industrial Relations Centre of Queen’s University. This is a video with accompanying booklet.