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Guest Post: Approaching Mediation in the NFL Concussion Litigation

2013 August 16

By  Timothy J. Bucher, Esq.

On July 8, 2013, with the highly anticipated ruling on the NFL’s motion to dismiss looming, Judge Anita Brody took many by surprise when she ordered the parties in In re National Football League Players’ Concussion Injury Litigation to mediation.  Despite any undertones that the order may have revealed toward Judge Brody’s likely disposition on the matter, the order gives the parties a unique opportunity.  With settlement seemingly a distant possibility prior to the order, the parties now avoid years of painstaking litigation by crafting a resolution through mediation or, at the very least, develop a better understanding of the issues (which may pave the way for a settlement further down the road).  And as the mediation begins, the parties can build upon the professional sports industry’s recent embrace of mediation as a dispute resolution mechanism.  Mediation contributed greatly to resolutions in the recent labor disputes of the NFL, NHL, and MLS (and was also used during the NBA’s labor dispute, albeit with less success).  In the NFL’s recent mediation experience during the league’s labor dispute, the owners and players took part in three separate mediations.  Those specific sessions can serve as a guidepost for the parties in the NFL concussion litigation as they attempt to resolve their issues through mediation.

Mediation, a form of alternative dispute resolution (“ADR”), is a self-determinative process, similar to negotiation (though instead with a neutral party at the helm), in which the parties determine a resolution rather than a judge, jury, or arbitrator.  Despite being court-ordered in many instances, mediation is still voluntary.  If a party withdraws from mediation, the litigation simply resumes.  Moreover, the mediator cannot disclose anything said or done during the mediation to the court or to others (with some exceptions relating to the well-being or safety of others), and the discussions have no legal effect.  Though mediation seems straightforward, for it to succeed in an industry as unique as professional sports, each party (including the mediator) must be cognizant of the many factors that can affect respective motivations and strategies and, in turn, a resolution.

For the NFL concussion litigation, in particular, the success of the mediation can easily be determined at the outset when appointed mediator and retired federal judge Layn Phillips decides how to conduct the proceedings.  He can have the parties (whomever they send as representatives) appear at each session face-to-face (“joint sessions”) or in separate rooms with the mediator as an intermediary (“shuttle diplomacy”), or he can choose to utilize a combination of the two.  Joint sessions may spur an immediate starting point.  However, they are not appropriate in all situations, especially where the underlying emotions or nature of the issues may detract from fruitful discussions and cloud the path to settlement (As a former ADR professor of mine and mediator tells parties, “Mediators are not therapists”).  Shuttle diplomacy also presents obstacles, as it too may impair the parties’ ability to engage in candid dialogue.  The lack of face-to-face discussions was a common complaint among players in the two failed mediations in the NFL’s labor dispute.  There, as a last ditch effort, the parties engaged in several marathon joint sessions, which ultimately aided in the parties’ reaching a settlement.

With the NFL concussion litigation, the gravity of the claims at issue (i.e., wrongful death, fraudulent concealment, fraud) may suggest that it be more prudent and practical to separate the parties.  Still, wading through the complex issues of the case may not be feasible if the parties are separated given the number of parties involved and the time and money that is required for any protracted discussions.  These are all factors that Judge Phillips must consider when deciding how to conduct the mediation; a decision that may seem trivial but will undoubtedly have a great impact.

Another seemingly insignificant yet determinative wrinkle to the process is the parties’ commitment to confidentiality.  Surely, the media has and will continue to report on concussions in the NFL, which have rightfully become a matter of great public interest.  Still, the order to mediate explicitly requires that the parties refrain from any public disclosure regarding the discussions.  The decision to leak details of the talks or to wage a publicity war while mediation is ongoing not only violates the court’s order but also eliminates any semblance of trust between the parties.  For example, in the NFL’s labor dispute, the court imposed a confidentiality order regarding the mediation, yet both the parties and the omnipresent “anonymous sources” routinely disclosed intimate details of the talks.  This hindered any progress and, not surprisingly, contributed to the failure of the first two mediations.  Only once the parties made an effort to maintain confidentiality were they able to reach a mediated settlement.

The high-profile nature of the NFL concussion litigation assures that there will be similar confidentiality issues.  Neither the media nor the public are bound by the order and undoubtedly have no intention of respecting it, so it is up to the parties to prevent any detailed information from being disclosed.  If media reports surface with any details of the talks (nothing has leaked as of yet), take that as an early indication that not all parties are serious about mediating toward a resolution and that the parties will find themselves back in court.

Lastly, imperative to the success of the mediation is the parties’ preparation for and approach to the discussions.  More specifically, a concept or strategy that often gets overlooked in negotiation (and, in turn, mediation) is grasping the value of one’s “best alternative to a negotiated agreement” (“BATNA”).  Simply put, this concept consists of a calculated balancing of the relative extrinsic and intrinsic benefits that settlement and its alternatives offer.  If a party’s BATNA will lead to a better result than a projected settlement, that party is best served to follow the alternative.  But as the circumstances of a dispute change, so, too, do parties’ interests, the relative balance of power, and whether settlement does, in fact, outweigh the alternatives.

For example, in the NFL’s labor dispute, the first two mediation attempts occurred while the district court and court of appeals, respectively, were close to issuing significant rulings in each case.  Despite the uncertainty involved, each party seemed to believe that their BATNA—continuing with litigation—outweighed settlement. But by the third mediation, the parties’ alternatives had changed.  Without a settlement, the parties would be faced with a prolonged lockout.  As their alternatives narrowed, the parties became more aware of and focused on engaging in interest-based bargaining (i.e., exploring mutual gains), which ultimately aided in a resolution.

Similarly, the NFL concussion litigants find themselves mediating with the court’s pending ruling on the motion to dismiss in the backdrop.  Either side may adopt the belief that they are better off waiting for Judge Brody’s ruling rather than to mediate.  But if the parties were to adopt an interest-based bargaining approach, they may find settlement at this early stage of the litigation to be advantageous.  Consider the many nuanced issues of the dispute.  Even if the litigation were to survive past the motion to dismiss stage, the court may simply be unable to provide the parties with adequate remedies.  For instance, the plaintiffs’ claim for medical monitoring presents several obstacles for the plaintiffs from both a practical and legal standpoint.  Across the aisle, the NFL is undoubtedly aware of the effect that prolonged litigation and factual discovery may have on its future liability, image, and, ultimately, bottom line (see, for example, the recent internal emails from the NCAA concussion litigation).  Mediation enables the parties to address these issues and contour a mutually-favorable resolution.

If the NFL concussion litigants are to maximize the benefits of mediation, they must be mindful of the foregoing factors, which are by no means exhaustive.   Even if the effort does not lead to an immediate settlement, the parties’ candid dialogue, respect for confidentiality, and willingness to engage in interest-based bargaining can pay dividends in the future.  The experience may provide the parties with a better understanding of the underlying issues or interests, temper expectations, and serve as a catalyst for future settlement.

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