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Mediators aren't miracle workers

11/27/2012 - NHL

It was just this past weekend that I was talking to Ottawa-based sports/labor lawyer Eric Macramalla about the threat of NHL players decertifying their union.

Macramalla's advice in the wake of Monday's news that the NHL and its locked-out players agreed to third-party mediation with federal mediators?

Don't throw away the decertification materials.

Wasn't Macramalla caught up in the optimism that accompanied the news that the two warring sides were ready to pound their swords into labor plowshares?

"To be honest with you, no," said Macramalla, a partner at a national law firm who has a special interest in sports law. You can find him on Twitter at @EricOnSportsLaw.

Rats.

Macramalla has been involved in mediation and points out that opposing sides agree to get a third party involved for a variety of different reasons, including assuming or hoping that said third party will support their position versus their labor adversary.

There's also the fact that mediation, unlike arbitration, is nonbinding, and the two sides can opt out at any point.

"Absolutely, it doesn't guarantee anything," he said.

Back during the 2004-05 season lockout, the NHLPA and the league tried mediation and lost an entire season shortly thereafter, although the two sides were at a vastly different point in their negotiations, so comparing the two is difficult.

On the plus side, the Federal Mediation and Conciliation Service has a proven track record in helping parties find labor peace. Between 2008 and 2011, FMCS settled between 85 percent and 87 percent of cases through mediation, according to the organization's annual report. But the FMCS was involved in both the NBA and NFL labor disputes in the last couple of years and could not mediate a settlement in either instance.

In fact, the players' unions in both cases explored various forms of decertification in spite of efforts at mediation. Both sports ultimately reached agreements with their players without going through decertification.

It's interesting to note, of course, that the NHL and its players did agree to mediation only after there was much discussion internally and publicly about whether the NHLPA would decertify as a way of trying to break the labor deadlock.

Was the threat of NHLPA decertification -- a dramatic strategy that Macramalla described as escalating from a battle to a war -- enough to prompt the two sides to agree to mediation?

Perhaps. But the fact that the two sides will engage in mediation beginning Wednesday at an undisclosed location doesn't preclude the players from pursing decertification at some point in time.

More to the point, the specter of decertification reflects how great the gulf that divides the two sides has become and is a reminder of the challenges that face the mediation team assigned to the two sides.

Still, in the face of the black hole that these negotiations had become, mediation is something.

As deputy commissioner Bill Daly said Monday, "Nothing ventured, nothing gained."

And we will certainly find out something about these two sides through this process.

For instance, we will find out if there is a genuine desire to get a deal done.

There has been much toing and froing about whether one side or the other really wants a deal.

The players insist the owners are more interested in crushing the union than getting the game back on the ice, and the owners believe NHLPA executive director Donald Fehr is on some sort of mission to avenge their alleged wrongdoing regardless of the cost to the game.

It seems ludicrous that either side would be happy to forgo a season or more to make a point, but anyone who's followed this process knows that logic got kicked to the curb a long time ago.

One would hope that agreeing to talk with a third party reflects a genuine desire to get a deal done on the part of both the owners and players.

Mediators, of course, aren't miracle workers (although hockey fans would be OK with a miracle worker or two showing up to help speed things along). One of the key issues for deputy director Scot L. Beckenbaugh and director of mediation services John Sweeney, who were assigned by FMCS director George Cohen to the hockey case, is trying to build some element of trust between the two sides.

This won't be about the two sides battering each other publicly about the lack of proposals submitted or the shortcomings of those that were delivered, but rather trying to find an understanding of what lies at the heart of the divide that separates them.

It seems like such a simple thing, trust, yet it is integral to getting a deal done, mediators or no mediators.

It is also something that's been in critically short supply since the process began in mid-July.

The atmosphere surrounding this process has been poisoned for some time now, and that poison has acted as a deterrent to meaningful give-and-take even as the two sides inched closer together on core issues like a split of hockey-related revenues and the owners' agreeing to honor existing contracts.

Maybe, just maybe, having a third party in the room will help release those toxins and the two sides can get down to the business of saving at least part of the 2012-13 season.

Or maybe what has divided the two sides in the weeks leading up to mediation will continue to divide them and this is just a brief pit stop on the way to another ruined season.