Just over a year ago MLS fans were wondering whether the MLS season would start on time. In a World Cup year, the league faced serious questions about player salaries, movement and more. Yet after a prolonged mediation session with George Cohen, the owners and players were able to reach an agreement that made labor peace a certainty for five years. In the context of the current sports labor environment, that peace (and the relatively drama free efforts that achieved that peace) looks pretty good. The labor problems in the NFL are a front and center and the NBA is just months away from a similar issue.
The NFL and its players union have tried mediation and have now found their way to the Courts. Here is what we said last year about that process.
Most importantly, mediation is a non-binding process. Though often confused with arbitration, mediation is typically much less formal and more importantly, is not binding. The parties simply engage the services of a non-party neutral (Mr. Cohen) and ask for his assistance in reaching a resolution. Typically, the parties offer their positions either in written or oral form to the mediator in advance of the sessions to set the baseline for negotiations.
Once the parties stake out their position and address any issues that the mediator needs to be resolved with the entire group , the mediator will typically engage in “shuttle diplomacy” by separating the parties and moving from group to group trying to advance towards a resolution. Once this process starts, the parties typically no longer talk to each other, but address concerns and solutions through the mediator who has the power to determine the pitch and mechanism of the delivery. Ideally, proposals and counter proposals go back and forth through the neutral until all issues resolved. At the end of the process, none of the proposals are binding unless the parties have reached an agreement. There is a truism about mediation that a successful mediation means that neither party is totally happy. The process forces compromise and seems like a perfect route for the stalled labor negotiations.
Mr. Cohen’s is an experienced and well thought of labor negotiatior, who spent much of his career as an attorney on the side of labor unions. He has a high level of expertise in labor law and collective bargaining and will likely lend a fair amount of credibility to the process. Despite his pro-labor leanings, the non-binding nature of the process and the high level personnel involved in the negotiations should obviate any potential bias. Before receiving a nomination from President Obama to his current role, he was also an adjunct professor at Georgetown School of Law teaching “The Art of Collective Bargaining. For more on Attorney Cohen, click here.