Siegel: The role of mediation in the NHL lockout

Jonas Siegel

1/5/2013 12:41:49 PM

MANHATTAN - He may be the most important man in solving the ticking time-bomb that is the NHL lockout.

Deputy Director for the Federal Mediation and Conciliation Service (FMCS), Scot Beckenbaugh is doing his best to help settle the ongoing CBA mess that has consumed the NHL and NHLPA. Over the course of the past week, Beckenbaugh – whose services were requested by both parties – has been meeting with the sparring factions, together and separately, as the deadline for salvaging a season looms with the NHL-imposed deadline of January 11th, a day that may or may not be flexible.

The NHL and NHLPA gathered for three consecutive days of full-committee bargaining earlier this week –Beckenbaugh included – talks that soured late Wednesday evening, following the first player-imposed deadline for declaring a disclaimer of interest. Further negotiations were scheduled for Thursday – smaller group meetings did take place – but never materialized as both sides met internally and with Beckenbaugh through Friday and into the weekend.
While Beckenbaugh has no power to enforce a settlement, he can, according to the FMCS website as it refers to the usefulness of mediatiors, look to "guide negotiators through potential deadlocks to a settlement which both sides can accept ... Their only tool is the power of persuasion."

The FMSC website, a particularly resourceful tool, stresses that the presence of a mediator does not mean that negotiations have failed. "It means the parties to the negotiation are using a tried and true resource available to them to improve their bargaining and to create an environment in which people are more likely to listen," the website said. "Mediation can add a lot to the bargaining before the final offer hits the table, or the parties hit an obstacle and progress is stalled."

Some other interesting and related points in the case for mediation (as per the FMCS website) include their ability to:

-  Simplify issues and differences: "Frequently, the parties both want a similar outcome. They just have a different view of how to get there, or sometimes, they just phrase it differently. Often, their goals are separate, but not contradictory."
-  Know when to continue or halt sessions: "[Mediators] know that, sometimes, it's important to let the parties vent in joint meetings, and sometimes it's better to adjourn and give one or both sides time to regroup, reconsider, or just cool off".

-  Find new solutions: "It's very natural for negotiators, who've been developing and living with contract issues, to 'lock in' on one approach. The mediator, as a neutral third-party, can take a more objective view and suggest options that more smoothly achieve bargaining aims."

-  Bolster communication: "This can range from rephrasing statements so that all parties clearly understand what is being said and what is meant, to mediator 'supposals.' These supposals allow exploratory proposals to be offered for discussion by the mediator without ownership and attendant risk to either party. Mediators can also meet off the record with the parties, and they often engage in "shuttle diplomacy," moving back and forth between separate meetings of the parties carrying offers and counter-offers."

-  Media dealings: "They may ask the parties to refrain from making any statements to the news media while the talks are in progress, or at least, to avoid trying to negotiate in the press."
By early Saturday evening – 6 p.m. eastern time – a second players' association vote to re-authorize the disclaimer is likely to pass, perhaps reinforcing pressure points that may have ceded following the deadline of the first disclaimer. Extending into its 112th day, the owners and players are believed to be divided on three major issues (among other smaller points) at this critical stage in the lockout; the players pension fund, contract length for player contracts and the cap number for 2013-2014, the second season of the agreement.

Mediation was used in the 2004-2005 NHL lockout as well as more recent lockouts by the NFL and NBA. It has also been utilized before in this negotiation process, most recently in early December, a two-day practice which yielded no results.