Posts of the Year: The Mediation Process

Perhaps the biggest business story of the year was the CBA negiations between MLS and the Players’ Union.  Fans waited anxiously as the league and players headed towards the season without a deal.  As the date to start the season got closer, the parties agreed to submit their dispute to mediation.  As the mediation process got underway, we put our lawyer hat on and discussed the mediation process.  Th  George Cohen was the mediator and he successfully brought the parties together.  Soon after this post, the parties had a deal and the MLS season started on time.

At the end of last week it was announced that the MLS Players’ Union and MLS had submitted their ongoing CBA negotiations to mediation before George H. Cohen, the Director of the Federal Mediation and Conciliation Service.  The announcement left fans scrambling as they wondered about the ramifications of mediation and the possibility of a resolution.  We thought we would provide some quick thoughts on the process and the mediator.

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.

Like all fans of MLS and American soccer, we are hopeful that the mediation process is successful and believe that the parties have chosen a good path to follow to bring this matter resolution.