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.
I am not a sports fan, but sometimes the sports world offers illustrations related to peacemaking. Usually it’s a bad apology—athletes provide a steady stream of them—, but last week, baseball offered us an example of something good: apology and forgiveness done well.
Armando Gallaraga, who plays for the Detroit Tigers, was “already celebrating” when he stepped on first base and caught the fielder’s throw before the batter reached the base: this was the third out of the ninth inning of the no-hitter Gallaraga had just pitched. But to his surprise, the umpire said the runner was safe. Certain that the umpire had made a bad call, Gallaraga says, “I had two choices: I could smile or I could punch him.” He chose to smile.
What empowers a person to show that kind of grace? It is no doubt always difficult to accept an official’s bad call with grace, but this was not just any game. There have been only twenty no-hitters in major league history, so Gallaraga was about to achieve something rarely seen in baseball—and the bad call by the umpire deprived him of officially pitching a no-hitter. Somehow, in that moment when Gallaraga realized he had a choice of how to respond, he was able to forgive the umpire, and smile.
The umpire, Jim Joyce, truly believed at the time that the runner arrived on base before Gallaraga. The Tigers’ manager and others began shouting at him, so Joyce went into the umpires’ room and asked to see a replay. “That when I knew I blew it,” he said. Joyce could have chosen to keep this information to himself; the umpire’s call stands, so admitting that he made a mistake would not change the outcome. Nevertheless, Joyce immediately asked to meet with Gallaraga, and apologized to him. Then, Gallaraga met with reporters and admitted to all of them that he had made a bad call.
What empowers a person to be so quick to admit a mistake to the person hurt by it? Somehow, in that moment when Joyce realized he had wronged Gallaraga, he was filled with the humility it takes to make an apology.
Both of these men demonstrated essential qualities of peacemaking: confession and forgiveness. And they did so immediately, almost instinctively.
I’m impressed. I have no idea whether either of these men is a follower of Jesus Christ and his teachings on confession (“first take the log out of your own eye”) and forgiveness (“forgive us our sins as we forgive those who have sinned against us”), but they illustrated them beautifully. I’m humbled by their examples. I’m not sure that I would’ve been so quick to forgive, nor so quick to apologize, especially publicly. I want to be like that.
I had the privilege a couple weeks ago to teach peacemaking to a group of believers in Hong Kong, through Peacemaker Ministries. Like all Christians, they struggle with conflict, including conflict with one another. There were people from both Western and Eastern cultures in our training, and some aspects of conflict resolution seem to be culture-specific–eg, in Eastern cultures, one cannot confront a superior, or an elder, directly. But the universal aspect of Christian conflict resolution is Scripture: it speaks to the hearts of believers everywhere, including to these dear people. God was at work during the training–we trainers had opportunities to conflict-coach several participants who wanted help putting into practice the principles they were learning about how to resolve conflicts biblically. It was humbling to see people working so hard to do what God calls us to do: Make every effort to keep the unity of the Spirit through the bond of peace.
April 20, 2010 – 10:20 am
Where’s the line between evaluative mediation–which is still a type of mediation–and non-binding arbitration, which is no longer mediation, but rather a type of arbitation? If, at the end of a long day of mediation, the mediator offers to come up with a number which the parties can accept or reject, has the mediator now crossed the line into non-binding arbitration? Is the mediator being evaluative? Or is the mediator simply helping the parties by suggesting a number that is based, not on what they might get in court (which would be more like classic evaluative mediation), but on the personal concerns that the mediator has gleaned from each side after working with them for several hours?
This matters because we are trying to come up with a new set of Standards of Conduct for Mediators in Michigan. In trying to define the mediator’s obligation to provide a quality process, we want to discourage mediators from forcing parties into accepting the mediator’s opinion of how the case should settle. That’s what judges do; that’s not mediation. Mediators are supposed to be neutral regarding outcome. But we also recognize that, at the end of a long day in which the parties have built up trust in their mediator, parties may desire and appreciate hearing their mediator’s best advice regarding a settlement outcome. That may still be within the broader definition of mediation, because the mediator’s proposal is based on a good understanding of each party’s positions and interests, isn’t binding, and is offered at the parties’ request, not on the mediator’s initiative.
Or has the mediator in fact crossed the line into some form of arbitration when the mediator offers an opinion as to how the case should settle? This is the debate that Professor Leonard Riskin sought to resolve through his articles on mediator style where he developed what is affectionately known as the Riskin Grid (he told us he dislikes that term) to map out various styles of mediation, including facilitative and evaluative. He maintained that what he called “evaluative” or “directive” mediation is indeed mediation; but other scholars (e.g., Kim Kovach, Lela Love) argued that what Riskin called evaluative mediation is not mediation at all.
We are still having this debate in Michigan. “Purists” (of which I’m one) are leery about mediators telling parties where their case should settle; we would never do that. But many busy mediators in Michigan insist that parties hire them because they will give a reasoned opinion after hearing each side’s views, and that helps parties settle cases that would otherwise be at impasse. But how different is that from a one-man case evaluation? The case evaluation process in Michigan is clearly a form of non-binding arbitration; attorneys submit briefs and present a brief oral argument before a panel of three independent attorneys who determine a number that is supposed to settle the case. Parties can accept or reject the case evaluation award, as that number is called. Case evaluators spend only a few minutes on each case, and never meet the clients, so are those the distinctions between evalautive mediation and non-binding arbitration–that the mediator spends more time with the parties?
I’m just not sure where the line is.
Here’s a reason why to not allow parties to waive their opening statements: I did a mediation recently involving a partnership breakup. In pre-mediation, it appeared that the issues would concern a buy-out of the departing partner, as well as a non-compete. But in the mediation, when it was the plaintiff’s turn to give his opening, he said to his former partners across the table, “I need a job.” The partners looked at one another, then said,” We need you back.” The rest of the mediation focused on how to restore the former partner to the partnership. If I had heeded some attorneys’ advice to “skip the opening statement” this might never have happened. I’ll never let parties waive their opening statements!
