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Legal Look: Mediation for upcoming NHL/NHLPA talks

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Eric Macramalla, TSN Legal Analyst
11/27/2012 12:14:49 PM
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With the sides far apart on a new deal, the NHL and NHLPA have announced they're taking their talents to mediation.

The sides have agreed to a request by the Federal Mediation and Conciliation Service (FMCS) to engage in mediation that will involve the participation of federal mediators. The Director of the FMCS George Cohen has assigned Deputy Director Scot Beckenbaugh and Director of Mediation Services John Sweeney to serve as the mediators.

So will mediation result in a deal? Is there cause for optimism?

What Is Mediation?

First what it's not. Mediation is not arbitration. Apart from being a partner at a law firm, I'm also an arbitrator. As an arbitrator, I listen to both sides, review the evidence and then render a decision that binds the parties. If they don't like my decision, they appeal it. If they don't like me, they tell me but there is no appeal.

Think NHL salary arbitration. Last year, an arbitrator ruled that Shea Weber was going to be paid $7.5 million. This was a ruling and not merely a suggestion.

Mediation is another form of dispute resolution. The key difference is that a mediator doesn't issue a ruling or a binding decision. Rather, the role of the mediator is to try and facilitate settlement. It's less Judge Judy and more Dr. Phil.

Litigation can be expensive and it can take years to resolve disputes through the courts. Through mediation, though, settlement can be achieved quickly and economically. For that reason, mediation in certain cases, like commercial disputes, has some appeal (yes, that pun was intended).

Mediation is an art, and very good mediators can achieve results, particularly in potentially volatile cases. As a neutral facilitator, a mediator will engage the parties in a dialogue, suggest mutually beneficial avenues of settlement and get the parties to think about solutions to their differences.

There is also a gag order in place during mediation so don't expect to hear anything regarding progress (or lack thereof).

In order for mediation to have a chance, both sides must respect and trust the mediator. This is key. If there is no respect or trust, settlement is unlikely to be achieved.

Who Is George Cohen?

In 2009, President Obama appointed Cohen as the head of the FMCS. Cohen has been described as a superstar of the profession. He is a great listener, reflective, fair and an unbiased mediator. He has done a lot of mediation and is well-respected by both management and players.

He also understands the politics of sports. Before getting into mediation, he was a lawyer for the unions in baseball, basketball and hockey. He has also mediated disputes between Major League Soccer and the Major League Soccer Players Union, the NFL and NFLPA and the NBA and NBPA.

Overall, Cohen is highly credible.

While he has appointed two other people to handle the NHL mediation, you can bet he will be following it very closely.

Will Mediation Get A Deal?

This isn't going to be easy. If the past is any indication, mediation may not result in a new deal.

While Cohen and company are very good at what they do, they have a tough assignment. Historically, these can be very difficult cases to successfully mediate. In 2011, the NFL and NBA were locked out and both turned to Cohen. However, despite his great skill, he was unable to bridge the gap between the two sides.

A deep divide remains between the NHL and NHLPA. The sides are led by very bright people who are intimately familiar with the issues and who are seemingly convinced of their positions. The divide is so significant that we are hearing that the NHLPA is considering the very dramatic move of decertification (click here for a Primer on Decertification). Talk of decertification really underscores how far apart the sides are, and by extension, the challenges faced by the mediators.

So this case may not have the ideal profile for a successful mediation. Indeed, Cohen and company are skilled, but not miracle workers.

However, while Cohen may not bring an immediate resolution to the dispute, he may position the parties for settlement after mediation is done. So there may be a benefit to mediation.

Ultimately, we have learned that what drives settlement in sports is not mediation, but rather the risk of losing an entire season, or a substantial part of it.

Eric Macramalla is TSN's Legal Analyst. He can be seen on TSN's That's Hockey and heard each week on TSN Radio 1050. You can follow him on Twitter @EricOnSportslaw.

Bettman and Fehr (Photo: The Canadian Press)

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(Photo: The Canadian Press)
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