By Bob Wallace
The whole purpose of mediation is to reach an agreed upon resolution to a dispute. This is done primarily with the assistance of a neutral third party whose job is to bring the two (or more) conflicting parties to a compromise, but agreed upon, solution to the underlying dispute.
There are several paths parties can travel in arriving to an alternate dispute resolution destination. It can be through voluntary submission to a neutral mediator, like the NFL tried with the Federal Mediation and Conciliation Service under the direction of Mediator George Cohen. It could be through court ordered mediation like the Honorable Susan Nelson attempted with Magistrate Arthur Boylan also in the NFL labor dispute. Mediation can also be achieved by parties contractually agreeing to use the mediation process to settle its disputes. The key, no matter what process path the parties choose, is that the mediating parties must be willing to utilize the mediation process to its fullest extent with the primary goal being to resolve the dispute to the mutual satisfaction of those involved.
The NFL‐NFLPA labor dispute, although ideal for the mediation process, appears to have lacked this fundamental understanding for the mediation to be successful. It appears that neither side has approached the mediation with settlement as an objective. The strategical process in this dispute appears to be a race to achieve leverage and the filing of the antitrust lawsuit was an admitted by‐product of that race. Mediation at the two intervals tried during this dispute (one, prior to the antitrust lawsuit filing, and two, ordered by the federal district court after the filing)did not fit into either sides negotiating strategy.
The poor timing of the mediating sessions along with conflicting strategic objectives is the reason mediation has so far proved unsuccessful in the NFL dispute. The criticism that the NFL contingent of negotiators did not include a large number of NFL owners is off‐base. The key to a successful mediation is that the people on either side of the mediation has the authority to speak for and, when necessary, either commit to a settlement or get prompt authorization for the settlement terms.
Plainly put, the key to a successful mediation is to have a workable group of the parties willing to reach a compromise agreement.
There was also some criticism that during the FMCS mediation, there were not enough joint mediation sessions of owners and players. Separate meetings is a very common practice in mediations as the mediator engages in shuttle diplomacy, going back and forth between the parties acting as a conduit for discussion. Such caucus mediation practice can remove the emotion and an effective mediator will breakdown the discussions to manageable issues and resolving differences. The key is not in “face‐time” between the parties but an understanding of what it will take to bring the two sides together. Eventually, and especially in a dispute like the NFLNFLPA one, where the parties will ultimately have to work together, the parties will have to meet together and work out certain details, but this can be done after the big issues have been boiled down to the points of agreement.
In effect, this is what makes mediation a viable and success proven alternate dispute resolution method, and with the proper motivation and perspective, a method that can and should work extremely well not only in this current labor dispute, but in player contract negotiations as well.
We have not seen mediation in the typical player contract negotiations. Instead parties, specifically in baseball, have utilized the arbitration procedure; where both sides submit salary demands and the arbitrator picks one based on comparables.
This process has left both sides less than satisfied. Management and players have expressed reservation about the antagonism that resulted from these hearings and the resulting division created by the arbitration process is difficult to close. As I wrote earlier, the player‐management relationship is a continuing one that in reality is just beginning once the compensation agreement is reached. Not only in salary arbitration but also in the typical player‐club salary negotiation, emotions and subsequent ill will often come out. Criticism from either the club regarding a player’s performance or from a player representative regarding a club’s ability to field a winning team can be taken personally by one of the sides. The perceived attack cannot be good for either party and you would think both parties would like to avoid the potential of lingering hostility.
This is why I think that mediation would be an excellent tool in sports negotiations. If done properly, a mediator could help boil down the differences to workable issues. He/she could deal with the emotions of the negotiations in a constructive positive way. What do I mean by that? Well, all negotiations or disputes have an emotional aspect underlying the issues of difference. Sometimes these emotional issues need to be dealt with in order for the parties to be able to get together. A good mediator can sense these emotional buttons and determine how to deal with them in an effective way to get the parties beyond them and to dealing with the separating issues. The mediator can choose to do this jointly or separately. He/she can channel the emotional outpouring as an outlet or be the sounding board for its release.
In addition to emotion, another common barrier to dispute resolution is the protocol of negotiations. When do you move, when do you counter and how much of either do you do? A mediator can help with this process. He/she can get a good sense of where the parties are, what are their hot buttons, and what are the issues one is willing to concede upon. The mediator can also get a clear understanding of the timing of the negotiation. In other words, are the parties at the proper place in time to receive the offer and evaluate it on the merits?
The key, however, to a good mediation and mediator is the confidentiality and trust that must develop between the mediator and parties. The parties must be able to speak freely to the mediator without fear that any confidential information or feelings will be shared with the other party. With such trust developed the successful mediator is able to guide the parties thru the mediation and to an agreeable resolution. The mediator can transmit offers and counter‐offers between the parties, and the delivery can be unaccompanied by the pent up emotions that are often present in tense disputes.
A perfect example of a dispute that was ripe for mediation was the dispute between the New York Jets and Darrelle Revis that occurred in the summer of 2010. Revis, an All‐Pro defensive back who was the cornerstone of the Jets pressure defense, was under contract to the team, but believed he was underpaid, and was insistent on holding out until he received better compensation from the team. The Jets, and in particular, its head coach, Rex Ryan, acknowledged that Revis was a critical component of its aggressive defense and, in fact, agreed he was underpaid. Typical of these types of NFL contract disputes is the question of the proper protocol of the negotiation and is it proper to conduct a renegotiation while a player is holding out? The standard answer is no. But here the Jets wanted and needed Revis, but were wary of creating a bad precedent of a player being able to successfully create leverage by withholding services. Revis, on the other hand, understood his importance to the team, loved playing for Coach Ryan, believed the Jets were a playoff caliber team and really wanted to be in camp and part of the Jets’ championship dream. Although, both parties had real incentive to get a deal done, these extraneous factors were creating a barrier.
It is here that mediation can be a catalyst to agreement. It gives parties an opportunity to engage in conversation without giving up whatever perceived leverage might be in play. In player‐management contract disputes, which typically run high in emotion, it can remove the potential for hard negotiating to pollute the future relationship. As said above, a good mediator can transmit offers and counteroffers back and forth between the sides without the emotional baggage.
So why haven’t mediations been used in player contract disputes? Primarily, because both sides are protecting turf and are stubborn in their respective demands. Another factor is that representatives on both sides — general managers or cap specialists for the teams and player agents – may not have a strong legal background and are not familiar with the mediation process, which is becoming commonplace in traditional, commercial or business disputes.
As we look forward, would not a practice that is proving successful in other areas of dispute resolution be transferable to the sports industry and, in particular, to contract negotiations? I suggest yes, but it will take parties to be brave and confident enough to accept third party assistance and understand the most important aspect of this transaction is reaching “yes” and coming to agreement.
Bob Wallace has spent the last 30 years as a front office executive for three NFL Franchises. The outgoing President of the Sports Lawyers Association has entered private practice focusing on sports, business consultation and mediations. A graduate of Yale and Georgetown University Law Center, he can be reached at bwallacelaw@earthlink.net
