Major League Soccer is about to enter its second weekend with replacement referees because of an impasse that has caused a lockout of officials prior to the 2014 season. The parties are back to the bargaining table, now with the assistance of a Federal mediator.
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 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 negotiations.
A few years back MLB umpires struck and essentially destroyed their bargaining power after it became clear that the games would go on without them. Last year, NFL referees were locked out, but after some high profile gaffes, a deal was reached and they returned. Now it is the soccer refs turn, but the deck seems stacked against the officials in this dispute. There is insufficient media coverage of the occasional bad call to cause a groundswell of support for the union.
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