M E D I A T I O N   E X P E R T   D E L I V E R S   K A I S E R   L E C T U R E

On November 13, a prominent alumnus who is an authority in U.S. labor relations described current pressures to develop less adversarial, more cooperative approaches to dispute resolution. The speaker was the Hon. Peter J. Hurtgen (F’63, L’66), director of the Federal Mediation and Conciliation Service (FMCS), and the occasion was the 14th Annual Henry Kaiser Memorial Lecture.
     In introducing Hurtgen, Professor Michael Gottesman lauded his leadership in resolving strikes in the West Coast ports in 2002 and between Verizon Communications and communication workers in 2003. Gottesman observed that although Hurtgen had represented management for 25 years, he is still “universally respected and revered by the union bar in this country.”
      In tracing the origins of labor law, Hurtgen said that the great success of the Wagner Act of 1935 perhaps owes less to its having been an innovative statute than to the dynamic approaches to collective bargaining that generations of lawyers have developed from it. However, he said, the balance struck between U.S. employees and management in past decades faces new threats, such as management of health care costs. Capitalist expansion, technological innovation, and the blurring of economic borders also pose challenges to collective bargaining. “The goal of efficient production is pushing traditional employment relationships aside in favor of contingent workers and temporary, part-time, and contract employees,” he said. A main problem, Hurtgen argued, is that the law hasn’t fully caught up with the mobile nature of today’s workforce.
     At the same time, he said, noncollective dispute cases–particularly employment discrimination suits–have increased to an extent that, in the aggregate, they tie up courts and run up staggering costs. In response, the FCMS has devised an approach, called dynamic adaptive dispute systems, or DyADs, which builds on recent studies in organizational development. It recognizes conflict as a necessary part of any functioning system, produced by humans with diverse interests and values.
     DyADs assists “pilot programs for employers and unions to develop for themselves their own adaptive dispute resolution system,” which a neutral body within the organization serves to review and refine constantly. He observed, “A well-functioning adaptive system [can] eliminate the grotesque aspects of our enforcement system in federal litigation."
      The FMCS’s role in this process, he explained, is to help management and labor develop the system.The FMCS supports training of personnel and evaluates pilot projects.A next phase is to take DyADs to the nonunionized sector while taking care to avoid its being perceived or promoted as an alternative to unionization.
     Hurtgen concluded by describing how such a system highlights what is already the most important asset of the legal profession:“It leaves you where you ought to be to begin with.The best service a lawyer ever gives his or her client is to be a wise counselor.That’s the primary function of the lawyer. In collective bargaining, that means you move your union or management client away from the adversarial fight system of the past, and into a collaborative mode.”

      Before the lecture, Dean Judy Areen introduced Henry Kaiser’s brother,Ambassador Philip Kaiser, who presented this year’s Kaiser Scholarship to Brian Stone (2L), who has already distinguished himself in union work in Washington, DC.The family and friends of Henry Kaiser established the lecture and scholarship in honor of his commitment to labor law and to improving the lives of working people.