An Eye Opening Aspect to the CBA "Negotiations"

[ScipioCowboy]

That's how mediations are typically done. I suspect it's been the same with the Megistrate Judge.

I was actually shocked when I heard about this, since in my experience negotiations are always in the same room. So I just asked another lawyer I know who does a lot of labor mediations. She says it's becoming more and more common, particularly where there's concern that the parties will get positional and the negotiations may be contentious. I still find it all rather bizarre, to be quite honest.

So which is it?

 

[Rockytop6]

I missed that report.

I think players have a right to be pissed off. These guys are screwing with their lives and livelihood.

No wonder such little progress has been made. I've been in many "discussions" and you are spinning your wheels until you can meet eye ball to eyeball. This prevents misinterpreting and miscommunication between the parties. I've known many situations where people who have the wrong info can work things out once they get the proper info. Sometimes the voice of the messenger can miscontrue the message. Sometimes the printed page is too cold to properly convey the sincerity or heart of those sending the message.
Unbelievable!

 

[SkinsFan28]

You're right and when hostilities are running high its often the best way to operate.

that is what makes this make some sense to me, clearly the two sides were not communicating in their own talks, so it makes sense to start off this way. I would think as you get more and more on the same page at some point face to face would be the way to go.

This does lead me to wonder though, if they were doing note style back then, why couldn't they continue via email (and yes theogt, I understand that they might be and we just don't know, but nothing from either side sounds in the least like it is). How hard would it be to have an email offer sent to the mediating judge, he reviews and forwards it, then the other side responds. Nothing in that process would spoil either sides legal argument with regards to union/class distinction, as it would still be part of the court ordered mediation.

 

[Joe Realist]

perhaps it will get settled in july or august or who knows. I believe 5 games will get axed.

 

[Outlaw Heroes]

So which is it?

My experience is in negotiating business transactions (takeovers, mergers and the like) and in that context I've never seen anything like this, so I was shocked. But like I say, I'm told by a labor lawyer I know well that more and more this is the way mediations are handled. The litigators seem to be confirming as much. Still seems strange, and possibly counter-productive to me (particularly where, as in this case, the parties on both sides are supposed to be sophisticated negotiators). But it is what it is, I guess.

 

[Hostile]

My experience is in negotiating business transactions (takeovers, mergers and the like) and in that context I've never seen anything like this, so I was shocked. But like I say, I'm told by a labor lawyer I know well that more and more this is the way mediations are handled. The litigators seem to be confirming as much. Still seems strange, and possibly counter-productive to me (particularly where, as in this case, the parties on both sides are supposed to be sophisticated negotiators). But it is what it is, I guess.

I am not surprised it has been fruitless. I wouldn't want to do it that way.

 

[Outlaw Heroes]

I am not surprised it has been fruitless. I wouldn't want to do it that way.

That's my gut reaction too. I can only assume that mediators have found it to be helpful, though I would have thought there would be flexibility in the approach based upon the parties involved. Surely where one is dealing with seasoned business negotiators on both sides the advantage of being able to communicate directly and respond in real time to the other side's proposals outweighs the possible disadvantage o things becoming contentious (as many negotiations do, in any event)?

 

[theogt]

The Jerry fist bump happened in negotiations in March, not in mediation.

I've never been involved in this type of mediation, but it's my understanding that this is pretty usual.

 

[SilverStarCowboy]

I am not surprised it has been fruitless. I wouldn't want to do it that way.

Yeah it's stupid we had to do the same thing on a theft/insurance settlement. Very childish but it's the system man.

The main thing is supposedly being in another room keeps things more civil in negotiations. This way nobody gets thier feelings hurt but you know people talk alot of crap behind closed doors when they don't have to face the other party.

In the end it's just a bunch of legal mumbo jumbo so the mediator can get paid too.

 

[Hostile]

The Jerry fist bump happened in negotiations in March, not in mediation.

March was mediation in front of Cohen before the NFLPA* chose to quit negotiation on March 11th.

 

[theogt]

March was mediation in front of Cohen before the NFLPA* chose to quit negotiation on March 11th.

By mediation, I mean court mandated. The other wasn't really mediation, but more just pure negotiations.

 

[peplaw06]

So which is it?

I've never been a party to a pure business mediation... but every time I've been in any mediation where there was a third party neutral mediator, the parties were never in the same room unless it was at the very beginning or when the agreement was being signed... and usually not even then.

Outlaw may have a different experience but he has stated here his experience in negotiation. Its not the same as mediation. However he may mean mediation. And he may have been in a mediation done with the parties in the same room. I just have rarely heard of it being done that way.

 

[Hostile]

By mediation, I mean court mandated. The other wasn't really mediation, but more just pure negotiations.

I don't feel obligated to use your definition of mediation when Cohen is called a Federal Mediator.

 

[theogt]

I don't feel obligated to use your definition of mediation when Cohen is called a Federal Mediator.

You can ignore it, but I'm merely trying to explain to you the difference. In one case, you have a formal mediation mandated by the court. In this situation, you will have a mediator who will actually mediate between the two parties. This means he will act as a go between. The parties will generally not have face to face negotiations.

In the other situation -- the situation that occurred in March -- the parties negotiate face to face like they would any other business deal. The mediator's role is very informal, if he's even truly involved at all.

Again, ignore whatever you like. But it sounded in the OP as if you wanted an explanation and I've given it to you.

 

[Fla Cowpoke]

Civil mediations are almost always done in this fashion. The idea behind it is if you get the two parties in one room, there will be a shouting match, both sides will get pissed and the chances of settlement are not great.

You basically are counting on the mediator to get things done and the sides closer together.

It has a fairly high success rate in civil matters like auto accident cases. Not sure if it is the norm in labor disputes or what the success rate is.

 

[CooterBrown]

I've never been a party to a pure business mediation... but every time I've been in any mediation where there was a third party neutral mediator, the parties were never in the same room unless it was at the very beginning or when the agreement was being signed... and usually not even then.

Outlaw may have a different experience but he has stated here his experience in negotiation. Its not the same as mediation. However he may mean mediation. And he may have been in a mediation done with the parties in the same room. I just have rarely heard of it being done that way.

I agree. (Peplaw and I agree! Put it in Headlines!)

I was surprised to hear other attorneys say they were surprised by this. (I guess Gomer would say, "Surprise! Surprise!) This is the only way I've ever been involved in mediation.

Usually it starts with a group session where everybody explains their position and their goals to the mediator, then the parties split into separate rooms for what is referred to as a "caucus". If the parties are particularly confrontational, the group session, other than introduction and ground-rules is skipped. The mediator then meets with each party separately and makes "point-counter-point" argument in hopes of reaching common ground. The "caucus" discussions are priviledged and the mediator cannot reveal to each side what the other said without authorization to do so. It cuts down on the friction between the parties, and because the mediator is neutral, he can find a common ground that "hackles-up" parties can't see.

With that said, mediation is usually how most cases are settled. In my practice mediated settlements outnumber trials at least 9-1. As judges always say, "if you mediate a settlement, you have some control of the outcome, I you don't, you have no control, I get to decide, and usually, nobody is happy with my decision."

The other side of it is that in most mediations, discovery has been complete, and each side knows what the other side has. Here, there has not yet been discovery. And, just so you know, it has been my experience that mediation before discovery is usually fruitless. That doesn't mean that mediation stops, it ususally means that mediation is put on hold until both sides have enough information to gauge their position better, and you try again after discovery.

To sum all that up, there is a very distinct difference between negotiation and mediation.

 

[RoyTheHammer]

That pretty much wraps up this thread. Thanks Peplaw and Cooter.

 

[Verdict]

Mediation can take many forms, but often the mediation will stat with both parties in the room together with the mediator. The mediator will usually lay out how he or she likes to conduct things and will usually set forth what he or she believes the main issues are, where the parties stand on those issues, and what is the status of the case as far as discovery is concerned, etc.

Sometime early in the process, while parties are still together, the mediator will usually ask each side to tell him what their view of the case is. Each side will obviously tell the case as they see it, which is usually in the light most favorable to them. This serves several purposes. First, it educates the mediator about the case. Second, it allows a party to hear an unfiltered version of the case from the other side. This is important because sometimes an attorney representing a party may, intentionally or unintentionally, fail to tell his client something which could alter a client's perception of the case. Third, it enables a party to "vent" to the other party, which is sometimes what they need to do to let go of the animosity they may have toward the other party.

Then, the parties will usually break up and the mediator will meet with them individually, where the other party is not present. Actually, this is usually much more beneficial, than face to face negotiations at this phase of the litigation, since if the parties could have settled it by simply talking face to face they probably would not need to have a mediator.

The separation of the parties is beneficial for several reasons. First, the mediator will usually start critically dissecting the case with the party he is meeting with. In effect he figuratively "beats up" on each party and softens the party to get them to move more toward the middle. Second, the mediator may say things like, if you will drop down to "x", I think I can get them to give up "y". This creates movement toward middle ground. In my experience, a case seldom, if ever settles until the parties separate.

Because of human nature, a party will often listen to a mediator say the same thing that a party will say, but it tends to be given more credibility when a mediator says it.

Having said the foregoing, there really is no set formula to mediations, and every mediator has a separate and distinct style. The mediation is usually tailored to fit the type of case, the level of animosity of the parties and the relative familiarity of the parties with the litigation process.

 

[Outlaw Heroes]

If this is what mediation entails, I think I'd rather they just negotiate, face to face, without a mediator.

 

[Hostile]

You can ignore it, but I'm merely trying to explain to you the difference. In one case, you have a formal mediation mandated by the court. In this situation, you will have a mediator who will actually mediate between the two parties. This means he will act as a go between. The parties will generally not have face to face negotiations.

In the other situation -- the situation that occurred in March -- the parties negotiate face to face like they would any other business deal. The mediator's role is very informal, if he's even truly involved at all.

Again, ignore whatever you like. But it sounded in the OP as if you wanted an explanation and I've given it to you.

That was not what you intended in this post which was the beginning of this side discussion. You weren't explaining anything. It was an attempt to discredit the report and it failed.

I would close this thread because the "shocking" aspect of it has been debunked by several of the lawyers on the site, but if I did without you getting to respond to this I am sure it would be seen as bad form.