- Lester Munson, Legal Analyst
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It's private. It's confidential. It's fast. It's highly fashionable. It's a hot topic in law schools and in seminars for lawyers and judges, who talk about it even more than they talk about money. When it works, it avoids endless and expensive litigation. And it frequently works.
It's called mediation, and it's what has been happening for the last week in an attempt to reach a new labor agreement in the NFL. It's also perhaps the last hope of Mets owner Fred Wilpon, as he tries to settle an embarrassing and expensive dispute with the trustee who is sorting out the Bernie Madoff mess.
As the costs of litigation skyrocketed out of control (the Wall Street Journal now lists lawyers who charge more than $1,000 per hour), the idea of mediation as an alternative began to develop in courthouses and in corporate board rooms in the early '90s. As it began to succeed, it became a regular part of the process in state and federal courts and in labor disputes.
So what exactly is it? What's been going on behind those closed office doors at the Federal Mediation and Conciliation Service (FMCS) in Washington, where DeMaurice Smith and his NFLPA team have been meeting with NFL commissioner Roger Goodell's staff of management negotiators almost every day since last Friday? And why aren't we hearing more about the content of those sessions?
George Cohen, the FMCS director and the person currently trying to mediate the NFL labor dispute, not surprisingly isn't saying much about the process or the likelihood of a settlement. He has said "some progress" has been made. But he has also said that "very strong differences remain." That's all we know.
The two sides have another meeting scheduled next Tuesday, which is just two days before the current collective bargaining agreement expires. Can mediation solve the dispute at the 11th hour and save the 2012 NFL season?
Here's the definitive, absolute, guaranteed-accurate answer: Maybe. Maybe not.
Not good enough for you? Well, this might help. Here's a look at how mediation can work, based on interviews with a number of experienced and successful mediators. None of the mediators who described the process to ESPN.com are involved with the current NFL situation.
First, as all mediators tell everyone in the first meeting, mediation is not arbitration. An arbitrator has the power to make a decision that ends a dispute and binds everyone to its terms. When an arbitrator looks at all the evidence and decides that, say, a shortstop's salary will be $8 million, that's it. It is the end of the discussion. Both sides are bound to accept the arbitrator's decision, whether they like it or not. If the NFL and the NFLPA were in arbitration, we'd be able to see a light at the end of this tunnel.
But they aren't.
The basic idea behind mediation is to put a trustworthy and independent person in the middle of the dispute to search for common ground that the two sides cannot see in the fog of acrimony that envelopes them. Unlike the arbitrator, the mediator cannot cram a decision down anyone's throat. Instead, the mediator simply listens to what everyone wants to say and then tries to find terms of settlement they may have overlooked.
The process begins with the mediator gathering everyone into a conference room.
"We ask both sides to state their positions, and we ask them to try to do it in a warm and friendly tone," said Fred Lane, a nationally recognized mediator who teaches the process throughout the U.S. and the U.K. and wrote the definitive "Media Practice Guide." "There is no jury to try to impress. There is no judge who will be making a decision. We want to start a conversation on the issues."
Establishing a mood of conciliation is critical, according to the mediators who spoke with ESPN.com.
"I have a few lines that can be funny that I try to use in the first meeting," said Faustin Pipal, a skilled mediator in Chicago who began studying the process nearly 20 years ago. "If there is no laughter, I know that it is going to be difficult."
But whether the bits of humor succeed or fall flat, Pipal said he makes sure the people involved in the dispute are at least well-fed while they're in his meeting room.
"If they are passing the mustard to each other, it's a start," he observed.
Lane, a skilled magician, has used sleight-of-hand tricks in his efforts to, as he said, "de-demonize the situation and eliminate the hard feelings they brought into the room. It helps build a warmer and even friendly atmosphere."
After the first meeting with everyone in the same room -- a week ago in the NFL case -- the mediator usually directs each side to a separate space and shuttles between them, exchanging information. This step in the process is known as a "caucus" and allows the mediator to search for settlement possibilities.
"We are not just messengers," Pipal said. "We shape the message. It's an art. We present things to the two sides in ways that they may not have seen or may not have considered."
In the exchange of information during the caucus process, the experts agree that it is critical that the parties to the dispute trust the mediator to keep everything under a cloak of confidentiality.
"They must be willing to confide in us and make us a member of their team," Pipal said. "We call it the 'Vegas Agreement' -- what is said in mediation, what is done in mediation, it stays in mediation."
That explains the nature of the very few comments that have come from management and the union in the days since the NFL mediation began. To wit:
From Jeffrey Kessler, a lawyer for the NFLPA, after one of the early sessions: "I have nothing to say, obviously. We're in a cone of silence."
From Jeff Pash, the NFL's lead negotiator, after Day 6 of mediation: "I just can't say anything. I'm afraid of Mr. Cohen."
Generally, the first point of agreement in mediation is that anything that is said or offered during the sessions cannot be used later in litigation if the mediation fails.
When it is working well, both sides view the mediator as part of their team, allowing the mediator to discern points of agreement that had not been visible when the two sides were arguing with each other.
"Putting the dispute under a public spotlight does not help," said Stephen Goldberg, a retired professor from the Northwestern University Law School who has taught mediation and served as a mediator in numerous disputes. "It is critical for the parties to trust the mediator with their most sensitive and important information."
As the mediator shuttles between the two sides, he or she tries to develop an idea of whether an agreement is possible.
"You try to clear away false barriers to a settlement," Goldberg said. "You clear the emotion. You clear away misunderstandings of what one side really wants and of what may happen if there is no settlement."
The NFL labor case and the Wilpon-Madoff battle involve complex issues in a large variety of areas. But sometimes, mediators agree, that sort of complexity is a help rather than a hindrance in the process toward an agreement.
"If you have a large number of moving parts, you can determine which are more important to one side and which are less important. If you know the relative importance, you can put together a package of compromises that may settle the dispute," Goldberg said. "It can actually be easier than a dispute over a single issue."
Obviously, it is important, the mediation experts agree, to keep the parties talking.
"If they are talking, you have a chance to settle," said Lane, who has participated, by his count, in more than 4,000 mediations. "You never want them to terminate the mediation. If they claim to be at an impasse, you simply do not believe them, and you keep talking,"
Pipal agreed: "If they claim to be at impasse, it may mean that they are simply trying to obtain one more concession from the other side. You keep talking."
Lane described a tenure dispute at a Catholic university.
"There was dogma, there was doctrine, there was disagreement on religious issues," he recalled. At one point, the members of the university negotiating team concluded that they had reached an impasse and departed. When one of the lawyers realized he had forgotten a briefcase and returned to the mediation room, Lane asked him to sit down and talk. In a matter of minutes, "We reached a settlement that solved the problem," he said.
Experienced mediators agree that during the process they begin to see something that can lead to a settlement. And it can happen at any time.
"There can be a moment when you suddenly know that there will be an agreement. It's an electric moment," Goldberg said. "Something comes along that you know will be the beginning of the end of the dispute."
Has that happened in the NFL-NFLPA talks? It'd be nice to know. But, of course, there's that "Vegas Agreement."
"You know we're not going to give you any information," Bob Batterman, one of the NFL's outside lawyers, told the media after one of the mid-week meetings. "I can't say anything, other than the fact that we are meeting."
The process can work, but it also can fail. During the NHL lockout of 2004-2005 that resulted in the cancelation of the entire hockey season, there were three attempts at mediation. All ended in failure. The final attempt came on Feb. 13, 2005, at the request of Scot Beckenbaugh, then the acting FMCS director.
Although the hockey players union indicated for the first time its possible acceptance of a salary cap in Beckenbaugh's mediation session, the five-hour meeting produced no agreement. Three days later, NHL commissioner Gary Bettman announced the cancelation of the season.
It is perhaps worth a reminder that one of the NHL's management lawyers who led hockey's owners through that lockout seven years ago was Batterman, the same man now working with the NFL management negotiators.
Although mediators carefully follow recognized procedures, unexpected things can happen -- things that would never be included in a seminar on mediation.
Pipal, for example, was trying to settle a dispute over the dismissal of a church secretary. When the secretary sued the church and claimed gender discrimination, the pastor of the church made a bad situation worse by saying, "I will never hire another woman." Facing an apparent deadlock, Pipal recalled that he asked to be allowed to converse privately only with the pastor and the former secretary.
Alone in the room with two clearly hostile individuals as their lawyers waited outside in the corridor, Pipal said, "I have no idea where the idea came from, but I asked them if we could pray."
When both agreed, Pipal asked the pastor to lead them. The pastor's reluctant but increasingly eloquent prayer focused on forgiveness and reconciliation. In a matter of a few minutes, the mediation ended in tears, hugs and a settlement.
That's the process of mediation: a lot of talking, some food, a bit of magic and maybe even some prayer. The NFL owners and players have certainly done a lot of talking. The same goes for both sides in the Wilpon-Madoff dispute.
Maybe it's time for some food, some magic and some prayer. Who knows what could happen?
Lester Munson, a Chicago lawyer and journalist who reports on investigative and legal issues in the sports industry, is a senior writer for ESPN.com.