Another Sports Story Hints at Need for ADR

A front-page story in our local paper yesterday reported that a former professional football player has sued the NFL Players Association and his former football team for non-payment of a pension to which he believes he is entitled (“Ex-football player says union owes him,” Grand Rapids Press, July 7, 2010, page 1). So I find myself once again intrigued by the mediation potential of a sports story.
The plaintiff is not justifying the lawsuit based on entitlement or on violation of legal rights. Instead, he said he was forced to file the lawsuit because, “We just can’t get anyone to return an email or a letter.” His lawyer agreed that they filed the lawsuit to get a response: “You just can’t get the NFLPA to respond to this stuff. We were forced to do this because no one would respond to this. Trust me, suing the players’ union and an NFL team is something I did not want to do.”
What they DO want to do, according to the lawyer, is “all sit down and resolve this thing.” That sounds like they want to negotiate– but when there has been a history of non-communication between parties, it’s unlikely that one-on-one negotiations would be fruitful, and that’s where mediation can help.
So why can’t they just “sit down and resolve this”? This case illustrates an advantage of litigation: it more or less forces the other party to participate in the process. A party can choose not to participate in a negotiation or mediation, and there’s not much the other side can do about it. But a defendant –the recipient of a legal complaint–who chooses not to participate in a lawsuit will lose by default, so whether a defendant wants to participate or not, a defendant is engaged.
Since this case is filed in Kent County Circuit Court, it will likely get ordered into mediation, where the plaintiff can finally have his chance to “sit down” and try to resolve the matter. In fact, this case is probably not simply the communication problem plaintiff portrays it to be. The defendants may say that they did respond, and their answer was “no.” Is the plaintiff saying he got no response, or that he didn’t get the response he wanted? Mediation offers the chance to explore the underlying interests that motivate parties to sue. For example, in this case it sounds like the plaintiff feels disrespected (“to get ignored like that, it’s pretty insulting”), so the settlement might include an apology or other recognition of the plaintiff’s value, in addition to some monetary compensation. In fact, wise defendants know that a sincere apology may reduce the payment needed to settle the case…but that’s the topic of another posting.

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