Mediator to the World

As a labor arbitrator and mediator who has handled more than 5,000 cases in his six-decade career, Arnold Zack, A53, thought he had heard every kind of dispute an employee could have with an employer. Which is why he was surprised when a group of Chinese executives called him to ask, “What do American companies do about hostage taking in the U.S.?”

Hostage taking, it turns out, is a pretty common bargaining tactic in Chinese factories. Last June, for example, an American executive named Chip Barnes was detained by 80 workers at a factory he co-owned outside Beijing. The workers feared that Barnes was going to close the plant and move production to India (which he was) without giving them severance pay (which he says he wasn’t). He was confined to the factory for six days until he gave in to the workers’ demands.

The American system of labor dispute resolution—which involves arbitration, mediation and minimal kidnapping—is unknown in China, and in much of the world. Zack has been on a mission to change that. Over the years, he has consulted with the governments of Australia, Cambodia, Greece, Israel, Italy, the Philippines and South Africa, sharing what he knows about settling workplace disputes.

China, in particular, is struggling with growing labor discontent. Trade unions are essentially illegal there, which means that workers are usually afraid to air their grievances about poor working conditions and low wages and instead resort to drastic measures. Zack, who regularly lectures at Chinese universities, encouraging them to teach labor dispute resolution courses, was surprised to find that of the 25 executives he spoke to at one meeting, five reported either they or one of their managers had at some point been taken hostage.

“They are desperate,” explains Zack, who has been urging the Chinese managers to seek out the leaders on the factory floors and hear their complaints before workers nab the nearest VP or suddenly go on strike. He has worked with a Chinese law school to train students in mediation techniques and create a hotline that “factory workers can call if they feel they are being screwed.”

Chinese labor law focuses on individual disputes, and the government, for its part, has been reluctant to create procedures for workers acting as a group, Zack says. It fears what happened in Poland, where Lech Walesa organized illegal worker groups to strike and ended up bringing the first noncommunist government to the Soviet sphere. “Trade unions are the first building blocks of democracy,” he says. So wouldn’t the Chinese government see Zack as advocating for unions? “It’s a dance,” he acknowledges. “Our goal is just to say what is on the table.”

It’s surprising that more countries haven’t adopted alternative dispute systems, Zack says, considering how innate mediation is to many cultures. “In every society, it is indigenous, it is universal,” he says, recalling a village in Nigeria where he saw elders sitting under a tree listening to complaints.

Mediation vs. Arbitration

If anyone is qualified to teach mediation and arbitration to the wider world, it is Zack. He has written a dozen books on the subject and teaches dispute resolution at the Labor and Worklife Program at Harvard Law School. He has served on five Presidential Emergency Boards, panels of seasoned arbitrators and mediators the president creates when transportation workers threaten a major strike that will disrupt interstate commerce. The most recent one was in November, when President Obama called on him to help disentangle the locked horns of the Long Island Railroad workers and the Metropolitan Transportation Authority in New Jersey. (They have yet to work out their differences.)

Arbitration and mediation are alternatives to long and costly court cases. An arbitrator hears both sides of a dispute and decides the matter like a judge; the opponents are bound by what the arbitrator rules. A mediator, on the other hand, helps the two sides reach a mutually acceptable middle ground.

Arbitration is a tricky job to sustain, because both sides—say, an airline and its pilots union—have to agree to use your services, and you inevitably wind up disappointing half of your clients. “The assumption would be that you even it out: decide half the cases for management and the other half for the workers,” Zack says. In reality, most sides know when they deserve to lose a case. Still, he says, it is always a matter of time before someone loses when they feel they should have won, and he’s seen steady customers such as Goodrich Tire, TWA and United Airlines stop calling. “Those clients go to some other arbitrator. And I get clients the same way, from clients who have fired their arbitrators.”

Mediation, Zack says, is more difficult, but more fulfilling: “I try to get people to change their minds, to cast doubts on their positions, to be creative and come up with new ideas.”

Zack got an early training in labor issues. His father, a factory worker turned government employee, helped draft the 1935 National Labor Relations Act, which gave workers the right to form unions and bargain collectively. Some of Zack’s first summer jobs were with the National Labor Relations Board, although he worked his way through Tufts and into Yale Law School as a shoe salesman.

In the early days, he supplemented his income with other adventures, including helping set up the newly created Peace Corps in 1961 (sharing offices with Bill Moyers) and traveling the world for his first book, Labor Training in Developing Countries. He thinks he may have done some good in South Africa in the 1980s when he convinced the U.S. State Department to give up its Cold War mentality and back certain nascent labor unions, even if they had communist ties. Those unions played a major role in ending apartheid.

Zack is impartial when it comes to who deserves to learn alternative dispute resolution. He created a mediation plan for the International Society of Krishna Consciousness (aka Hare Krishnas), to settle internal arguments over everything from plagiarism to chanting too loud. “Jews, Methodists, any religious organization could benefit from adopting dispute resolution procedures,” he says.

Yet his experience as a mediator doesn’t always work to his advantage. He claims he is good at getting people to see another side, but not necessarily his side. “I’m not a negotiator,” he says. “Ask my wife. She always wins.”

This article first appeared in the Summer 2014 issue of Tufts Magazine.

Julie Flaherty is a senior writer in Tufts’ Office of Publications.