In this session, a panel of Lancaster’s experts will provide practical tips to guide you through tough ethical dilemmas commonly faced by labour relations professionals. Issues to be addressed include:
- Staying on the right side of negotiations: Does the level of candour required in negotiations differ from that required in litigation? If so, how? Does the level of openness and honesty required in attempting to settle a grievance differ from the level of candour required in collective bargaining or in negotiating contracts of employment? Is it acceptable to raise the prospect of a strike or lockout if that prospect is very unlikely? Is posturing the same as lying? If not, how are they different? Is it ethical to bluff the value of a case to a mediator, in the hopes of achieving a favourable settlement? What about misstating the limit of settlement authority at mediation? Is it ever ethical to “low ball” your own client? When, if ever, is it ethical to threaten or institute proceedings in order to gain leverage?
- Litigating zealously, within the bounds of civility and professionalism: What standards are applicable to an advocate’s behaviour? What sanctions are available in the case of an advocate’s discourtesy to the tribunal? To the opposing party? When, if ever, is it defensible to contest facts not seriously in dispute? Is it ethical to decline entering into an agreed statement of facts, call extra witnesses or otherwise drag out proceedings because the mounting costs of litigation might pressure the other side to settle or withdraw? What professional obligations are applicable to interviewing and communicating with witnesses? What professional obligations would a lawyer have to keep in mind if a grievor refuses to cooperate with reasonable requests during the course of arbitration? Is there an ethical obligation to advise adjudicators of arguably binding authority that is contrary to your own position? Is it appropriate to subtly inform an arbitrator that an unwelcome decision could result in his or her “never arbitrating in this town again”? Does a grievor have a right to insist that certain witnesses be called? That she or he be permitted to testify?
- Representing and supporting employees with disabilities: What steps should be taken if it appears that a grievor is unable to meaningfully participate in the grievance process due to medical or health issues? How do the obligations of union and employer counsel differ in this context? What obligations, if any, does a lawyer owe to the union and/or to the grievor to explore whether the grievor has an undisclosed disability or other condition that is hindering the grievor’s ability to participate in the proceedings, and which may raise issues of accommodation? What should a union lawyer do if a grievor privately reveals that he or she suffers from an “invisible” disability, but insists on concealing this information from the union and/or the employer?