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For NFL, mediation is all about grinding forward

Representatives of the NFL and its players union will trudge into a Washington, D.C. conference room Tuesday for an eighth day of mediation, the continued goal being to make a breakthrough in their stalled labor negotiations.

With the league inching toward a possible lockout as early as this week, and with billions of dollars at stake, the federal mediator presiding has asked the parties not to comment in the media. That has left the public to wonder whether the leaders of our country's most popular game are getting anywhere in preventing a work stoppage.

But interviews with experts in law and negotiation paint a mildly encouraging picture of what likely is transpiring in the room under mediator George Cohen.

They say there is likely a fair amount of frustration and acrimony as the process is painstaking. But a savvy mediator can rise above that and help the sides see they share common ground. It's complex and exhausting, but in the end, perhaps the best sign is that the sides voluntarily remain at the table despite the fact the mediator can't compel them to stay there.

"The fact that they are even coming back is a good thing," said Thomas Hurst, a sports law expert at the University of Florida law school. "A mediator can't impose anything on either side."

Progress is usually more incremental than substantial, but each development, however small, makes a lockout a little less likely.

"Compare it to fighting a wildfire that's raging out of control," said Michael H. LeRoy, a mediator of labor disputes and a law professor at the University of Illinois. "(Mediators) aren't called in unless and until there is a near impasse. And to follow the firefighter metaphor, the first thing the mediator is going to do is to try and control the spread. The firefighter doesn't go in and immediately say, 'Let's put this fire out.' Instead, they are building a fire line, a boundary so that the fire doesn't spread."

Mediators in labor disputes are part referee, part psychologist. They listen and sympathize but can be brutally honest when necessary. They almost always start with baby steps, something that was reflected in a statement released by Cohen on Thursday.

"Some progress was made, but very strong differences remain on the all-important core issues that separate the parties," he wrote.

That's fairly typical in intricate negotiations.

"First, you're looking for areas that we call integrative issues," said Charles Craver, a former labor lawyer and arbitrator who teaches at George Washington University Law School.

"You're looking for issues where one side wants a lot and the other side doesn't care that much about it. … What are the issues that you can sort of trade and improve both sides' situations? Then you look at what we call the disputative issues, the issues you're really going to fight about. They tend to be about money."

That's why, in collective bargaining, most breakthroughs come in the 11th hour, which in this case would be, oh, now. There is recent precedent. Major League Soccer successfully negotiated a collective bargaining agreement with Cohen's help last year, reaching a deal a week before players were scheduled to begin a strike.

The NFL's current CBA expires Thursday. Absent a new agreement, owners could then begin a lockout of the players, effectively shutting down the league and jeopardizing the 2011 season.

Labor agreements are routinely reached through mediation. But the critical question isn't usually if, but when? Does a resolution come before a lockout and the annoying legal wrangling that will ensue? Or can one be reached now, when there are fewer hurt feelings?

The sides appear to be a long way from avoiding a work stoppage, but mediation might be their best shot right now.

"We have far fewer work stoppages today because of the decline of unions, but also because there are thousands of CBAs negotiated every year, many of them through mediation," Craver said.

LeRoy offered an optimistic example from his own experience. Early in his career, while working alongside the former head of the Federal Mediation and Conciliation Service (Cohen is the agency's current director) in a heated coal miners strike, LeRoy watched his more experienced colleague take a passive approach to the mediation that gave the appearance things were going nowhere.

"The guy sat there and would ask questions and listen to answers and then ask some more questions and listen to some more answers," LeRoy said. "It felt like we weren't doing anything. We spent the whole day in sort of a lazy, slow, fact-finding mode. Then, he and I went out to dinner and I said, 'I don't get it.'

"And he said, 'You really don't get it. My job is to make sure the parties stay at the table. Eventually, they'll reach a point where they'll get into a conversation and it'll have traction. As long as they keep talking, we're okay.' "

He was right. The sides eventually reached a deal. Now, football fans can only hope the NFL has a similar outcome.

Stephen F. Holder can be reached at [email protected]

For NFL, mediation is all about grinding forward 02/27/11 [Last modified: Sunday, February 27, 2011 7:16pm]
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