Situation 'screams' for mediation

Updated: January 27, 2005, 2:28 PM ET
By Scott Burnside | Special to ESPN.com

Here's a prediction from one of Canada's leading labor and mediation lawyers: The NHL and the players' association will never resolve their dispute without outside help.

Never.

And this thing will never be resolved with these two parties involved at the bargaining table.
Paul Boniferro, Canadian labor lawyer
"When you look at this thing from the outside it screams out 'mediation,' " Paul Boniferro, a partner and head of the labor and employment law group for McCarthy Tetrault, Canada's largest law firm, told ESPN.com on Wednesday. "And this thing will never be resolved with these two parties involved at the bargaining table. Both sides have entrenched their positions so deeply. They actually need a third party to come in and say, 'You have to drop that.' "

At the same time Boniferro was sharing his thoughts on the 132-day old lockout, the two sides were meeting at a secret Toronto location, trying desperately to jump-start negotiations in an effort to save the 2004-05 season.

Representatives from both sides emerged after meeting for almost six hours on Wednesday with little to report other than they will meet again this week. A source close to the process said the meeting will likely continue the trend of small, informal gatherings.

But as the sides continue to take baby steps toward a rapidly closing window of opportunity, labor experts agree that had the sides agreed to outside help earlier, fans would be pondering the NHL's latest game summaries, not the tone of its obituary.

"The moment [they] agree to mediation, this thing's going to get resolved," Boniferro said.

How can he be so sure?

Let's do a test.

If the NHL told players it wanted a salary cap between $80 million and $90 million, would the players agree? In a heartbeat.

Conversely, if the NHLPA told the league it would endorse a luxury tax threshold of $25 million with a $2 penalty for every dollar spent over that amount, would the owners accept? Yes. In half-a-heartbeat.

Now put a mediator in the room and start to work from each premise. It doesn't have to be a hockey person, Boniferro said, just someone that knows the "pressure points" of the two positions.

This isn't the first time the need for a middleman has been sensed.

A mediator with the Federal Mediation and Conciliation Service, a Washington-based government department which tracks all collective bargaining in the United States, was appointed to the NHL and NHLPA and has been in regular contact, reminding them of the services offered, spokesman John Arnold said Wednesday.

"We continue to be ready to assist," Arnold said.

Would it help? Consider that 80 percent of the 5,000 cases in which the FMCS assisted in 2004 ended with a settlement.

When the sides went three months without meeting, between September and December, everyone from Wayne Gretzky to agent Don Meehan to Don Cherry was touted as a potential deal-broker. OK, maybe not Don Cherry, but Ron MacLean might have gotten the deal done.

Everyone has offered help. There's an open letter to NHL commissioner Gary Bettman and NHLPA executive director Bob Goodenow posted on the Web site of a Calgary-based petroleum development organization, the Petroleum Joint Venture Association, outlining the benefits of mediation. It mirrors the contents of a letter sent to Bettman by the 22,000-member NHL Fan's Association in August.

Even Canadian Prime Minister Paul Martin offered up the services of the federal government's mediation group. A group spokesperson said this week the offer still stands.

Mediation has worked for groups and companies across North America's business landscape -- from autoworkers to airlines to teachers to steelworkers. The one area that seems impervious to such outside help is the sports world.

"It's a leading-a-horse-to-water issue," said Mort Mitchnick, the former chairman of the Ontario Labor Relations Board, now an independent mediator whose past cases included Major League Baseball's salary arbitration dispute.

The reason? Sports organizations tend to feel no one else understand their specific issues.

"Some would say, 'What have you got to lose?' But the sports industry seems to dance to its own tune," Mitchnick said. "I think they don't understand the value that a mediator can bring to the table."

It would seem so. At every turn, players and owners have been strangely defiant in their refusal to either acknowledge they need help or should seek it out. In fact, the refusal to embrace outside help is about the only thing the two sides have agreed upon since the lockout began on Sept. 16.

"It's not about mediating," Bettman told Terry Frei in an interview posted on ESPN.com in November. "Mediation is when the sides don't understand each other. We understand each other fully."

Goodenow has been equally cold to the notion.

And so the hockey world waits as the two sides scurry from secret location to secret location, trying to piece together a bridge while experienced builders stand by and watch.

"I'm very surprised, quite frankly," Boniferro said. "That's a sign of both sides not wanting to resolve their differences."

Scott Burnside is a freelance writer based in Atlanta and is a frequent contributor to ESPN.com.

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