Experimenting with Alternative Dispute Resolution as a Means for Peaceful Resolution of Interest Labor Disputes in Public Healthcare - a Case Study

By Mironi, Mordehai | Law and Contemporary Problems, Summer 2011 | Go to article overview

Experimenting with Alternative Dispute Resolution as a Means for Peaceful Resolution of Interest Labor Disputes in Public Healthcare - a Case Study


Mironi, Mordehai, Law and Contemporary Problems


I

INTRODUCTION

On the morning of May 27, 2000, as Israel's nationwide doctors' strike was entering its eleventh week, the Prime Minister convinced the doctors' union to try mediation in order to reach an agreement. This marked the beginning of an unprecedented experiment with Alternative Dispute Resolution (ADR) as a means of peaceful resolution of labor disputes in public healthcare. The experiment began with a long and highly volatile crisis mediation,' which turned into strategic or preventive mediation, followed by a ten-year period under a voluntary no-strike arbitration regime ending in July 2010.

This case study describes, discusses, and analyzes the no-strike arbitration in action, assessing its value, promise, and limitations. Drawing upon in-depth interviews (2) with the arbitrators and the parties' representatives and counsels, as well as upon the extensive litigation and transcripts of the arbitration proceedings and award, this case study emphasizes the process-oriented aspects of the arbitration. It also distills and analyzes more general insights and lessons, and highlights their broad, policy-oriented implications.

II

BACKGROUND--THE LABOR-RELATIONS TERRAIN, THE STRIKE, AND THE MEDIATION

A. The Labor-Relations Landscape

Israel has been described as a "labor state"--a state run by a labor movement. (3) At one time, the rate of unionization was as high as eighty-five percent; the present rate is approximately thirty-four percent. (4) One union, the Histadrut, represents practically every unionized worker in Israel.

Like other professionals, doctors are highly unionized. More than ninety percent of all doctors employed by hospitals and clinics in Israel belong to a union. In contrast to almost all other white-collar employees represented by the Histadrut, doctors and certain other professionals (5) belong to independent unions. Doctors are represented by a single union, the Israel Medical Association (IMA).

The IMA's constituency is highly heterogeneous. It represents many members with different and sometimes conflicting interests. First, the IMA is a federation of two unions: the Association of State Doctors and the Association of the General Health Services Doctors. The latter represents two distinct populations--doctors who work in hospitals and doctors who work in clinics. Second, the IMA represents all levels of doctors--from interns to hospital general managers--within a single union and one bargaining unit.

Medical care in Israel is predominantly public and semi-public. Although private medicine has been expanding in recent years, it serves only a small fraction of the population. Medicine is dominated by two large employers: the Histadrut-affiliated provider General Health Services (Clalit) and the state. Clalit is the primary provider of healthcare to more than half of Israel's population. It owns and runs sixteen hospitals and 206 health-maintenance organization (HMO) clinics, and employs two-thirds of the 16,000 members of the IMA. The state runs twenty-one hospitals and twelve mental-health centers. In addition, several hospitals are owned by the municipalities of Tel Aviv and Haifa and by non-profit associations, as well as several hundred clinics run by two other medium-sized, semi-public HMO-type providers of medical services.

Doctors' salaries and working conditions are governed by a nationwide multi-employer collective agreement, (6) traditionally signed by the IMA on the one hand and the major employers on the other. The other employers in the industry either join the agreement (7) or follow the nationwide agreement norms as "units of direct impact." (8) The chief negotiator representing the employers is the Director of the Wage and Labor Agreements Division, a division of the Finance Ministry that administers and enforces the wage-control program. Since 1985, the public sector in Israel has been under strict wage control. …

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