BY: MICHAEL PERLO
Instead of countering the Major League Baseball Players Association’s (MLBPA) latest offer, Major League Baseball (MLB) has requested a federal mediator to assist in its ongoing collective bargaining negotiation. Being someone who is a firm believer in alternative dispute resolution (ADR), I would like to shed light on the positive impact mediation could have for MLB and the MLBPA in coming to an agreement on a new collective bargaining agreement (CBA). Before the two sides can move forward with a third-party neutral, the MLBPA will have to agree to this. Ultimately if this is the path they choose, here are some aspects of mediation that baseball fans may want to be made aware of when following the rest of the negotiation:
Mediation is a private process where a neutral third-party, called a mediator, helps the parties discuss and try to resolve the dispute. The only people who can resolve the dispute are the parties themselves, not the mediator. The mediator does not have the power to make a decision for the parties, but will help steer the conversation in a mutually beneficial direction. The mediation process is completely voluntary, and parties are not required to come to an agreement.
Parties are given the opportunity to describe issues, discuss their interests, understandings, and feelings; provide each other with information and explore ideas for resolution of the dispute. The idea is to keep the parties communicating and allow them to better understand their interests. There is a major difference between positions and interests. Currently the MLB and MLBPA are stuck on their positions which is why they are yet to come close to an agreement. A key part of mediation is to get both parties to disclose their underlying interests, which may not have come to light in earlier negotiations.
The most common way for parties in a negotiation to reach an impasse is for the parties to be stuck in their positions. Positions are what a party says they want. They are typically surface statements indicating where a party stands, and rarely provide insight into underlying motivations, values or incentives. On the other hand, interests are why a party wants what they want. They are the underlying reasons, values or motivations, and explain why a party takes a certain position. Sometimes a parties position conflicts with their underlying interests. In the case of MLB and the MLBPA, their current positions are getting in the way of their underlying interests of starting the season on-time and generating revenue for a 162 game season. The job of the mediator is less to convince than it is to find solutions that address both parties’ interests. This is why mediation is looked at as an assisted negotiation.
There are a number of different ways a mediation can take place. Most mediations start with the parties in a joint session. In the case of the MLB and MLBPA who have many people on each side of the table, it is likely that Commissioner Rob Manfred accompanied by a team of lawyers will sit across from President of the MLBPA, Tony Clark, and his team of lawyers, both aided by a third-party neutral to help facilitate the conversation. The mediator will then describe the process and establish ground rules and an agenda for the mediation. Sometimes mediators will conduct the entire process in a joint session, but if the conversation comes to a halt, the mediators might break and meet with each party individually in what is called a caucus. A caucus is where the mediator will shuttle back and forth between the parties to gauge where they are at in terms of the flow of the conversation, and whatever else they need assistance in discussing. It is more likely than not given the history of the MLB and MLBPA that the process will not be entirely handled in a joint session.
The two sides took 43 days to have their first meeting since the start of the lockout on December 1st, and have made little headway since that meeting. As the season gets closer, it is inevitable spring training will be delayed and America’s pastime may not get underway on-time. Mediation might be the key to getting the two sides unstuck from their positions and discussing their underlying interests in greater detail. Mediation is an entirely private process, but if the two sides come to an agreement, much of what was discussed will be laid out in the next CBA. With spring training in jeopardy, the parties know they need to move quickly to start the season on-time, and mediation may be their saving grace that allows just that.
Michael Perlo is a law student at the University of Buffalo School of Law, Class of 2023. He can be found on Twitter @michael_perlo.