Navigating aggressive negotiation maneuvers

It’s well known in the sports dispute resolution world that the NFL owners and players association have just finished a week of mediation. The talks are being held in advance of the upcoming expiration of their collective bargaining agreement. The two sides have been unable to come to an agreement on player salaries and the length of the regular season as well as a few other issues.

The players union has just advised it will decertify in advance of the expiration of their contract if a new agreement isn’t reached. The players intend to avoid a lockout, which the owners have clearly threatened. Both moves are very aggressive and pave the way for litigation.

It can be difficult to deal with emotionally charged parties in a negotiation and even more straining when they take drastic measures. The mediator can play an important role in getting the parties back on track towards negotiating a binding resolution in several ways. Some approaches include;

Take a break – When things are getting nasty, mediators may want to propose a lunch or coffee break to give the parties a chance to think about what they have recently said. Sometimes a little time away from the negotiating table will provide for a sober second thought.

Caucus with the parties and have a frank discussion about the consequences of the threatened action - Many disputants make aggressive treats without fully thinking through the possible outcomes. I’ve often seen clients threaten to take matters to trial having had no regard to the costs and risks associated with litigation.

Refocus the parties on the benefits of a negotiated settlement – Particularly in the case of the NFL, any missed playing time means a reduction in ticket and t.v. revenue. It is in the best interests of both parties to avoid a work stoppage and continue to produce a valuable and entertaining product.

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Confidentiality in mediation

By: Brian

My Google alert brought to my attention that a North Carolina newspaper published financial details of a legal settlement achieved at mediation. The matter was pertaining to an excessive force lawsuit between the local police service and a civilian. I will not repost the article because I find it disappointing to see details of a settlement like this, or any other, become public.

Mediators dealing with disputes in litigation should take note. They should encourage counsel to expressly address confidentiality within settlement agreements. Involving a mediator in this process can be a benefit to counsel (and their clients) as they can help iron out any wrinkles which may occur and will lead to a lasting agreement.

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Website Launched!

We are thrilled to announce the launch of CivilADR.com. We look forward to blogging about and sharing news, information, and topical insight into the world of Alternative Dispute Resolution.

We invite interested guest bloggers to contact Brian at brian@civiladr.com about contributing to our blog.

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