What Major League Baseball Could Learn from the Mediation Model

I love baseball.  As this is written, I am counting the days to when pitchers and catchers report for Spring Training.  Perhaps I’ll even get to a spring training game, escaping from northern climes into a Floridian baseball nirvana that, for about two months, eats, breathes and sleeps baseball, with games attended by zealot fans who have made the pilgrimage.  Every spring training game is a reminder of the summer of emotion and distraction to follow.

And when the season finally starts, what says summer more than a baseball game playing in the background?  What game better paints a mental picture from radio while driving?  Yes, not only am I a baseball fan, but as the son of a Brooklyn Dodger fan, raised in Flushing, Queens, I was destined to become a Mets fan and thereby have my faith and resilience tested on an annual basis.

But wait!  “Lockout”?  Possible Strike?  No opening day and perhaps no season at all!  How could this be happening?

I would postulate that the risk of this lost season is rooted deep in the history of baseball, going back to the infamous “reserve clause” and into the modern era of the Players Association.  It has always been a drama played out in the public eye, and this may be at the root of the problem.  In short, the public forum in which these negotiations take place is an anathema to a successful negotiation.  As both sides jockey for the best “optics,” they undermine the negotiation and alienate the very party with whom they need to reach an agreement.  Not only does the publicity tail wag the negotiation dog, it wags it so furiously as to knock the whole dog into a paralyzing seizure.

When we enter into a voluntary mediation, we proceed with two near absolutes: 1) the parties are attending by choice to resolve a dispute; and 2) no one gets to talk about it  – ever!  I.e., confidentiality.  Although many positives and negatives can precede a mediation, the process itself is one of détente, a temporary cessation of hostilities in favor of listening and compromising.  Of course, the more bad blood, the more hurdles to success.

The latest MLB hostility has its roots in embarrassingly poor negotiations that delayed and nearly destroyed baseball in the season of Covid, 2020.  If ever there was an opportunity to work together, this was it.  A full season of revenue at stake, a common enemy – a pandemic and all the restrictions it imposed — and a common goal of preserving as much of the season as possible.  Somehow, despite both sides having everything to gain by working together, it all went into the dumpster. 

The main issue seemed to be pro-rating for whatever portion of the season was played.  However, because the season would be played before empty stadiums, the owners felt that the pro-rated amount should be reduced to adjust for the lost revenue attributed to ticket and concession sales.  Whatever the calculus, the more games played, the more revenue to be shared.

The season’s near-cancellation began on March 13, 2020, when spring training was suspended.  Having attended Spring Training opening day with my beloved Mets, little did I imagine that it would be the only game I attended.   As Covid-19 took hold in this country, all bets were off.  Soon there was talk of a potential July first start of the season.  This proved to be optimistic, and the season’s first games were not played until July 23rd in empty stadiums.

Commissioner Robert Manfred proclaimed a sixty-game season after months of acrimonious and reciprocal public lambasting between the Players Association and the Commissioner/owners.  While an America eager for any distraction was largely locked at home, opinions of players and owners plummeted, as the forum of public opinion became primary.  With all this bad blood as prologue, the consensus was that a lockout would precede the 2022 season, and that’s’ exactly where we are.

Imagine this scenario.  Bound to confidentiality, owners and players meet before a neutral mediator.  The only permissible communication would be a pro forma agreed joint statement at the close of each day’s mediation.  There would be no press conferences and no war of words.  In the meantime, a capable mediator works with the parties, looks at the numbers, and maintains confidentiality in caucus sessions.  While this occurs, there is no effusion of blood and the parties quietly work TOGETHER toward forging an agreement they both want. 

I cannot prove any of this, but I believe that had mediation confidentiality been utilized back in 2020, there would have been an earlier agreement, little or no bad blood, and no doom and gloom forecast for 2022.

Where are we now?  A negotiation beginning with the nuclear salvo of a lockout and blaming the other side.   Commissioner Manfred stated, “Regrettably, it appears the Players Association came to the bargaining table with a strategy of confrontation over compromise.  They never wavered from collectively the most extreme set of proposals in their history, including significant cuts to the revenue-sharing system, a weakening of the competitive balance tax, and shortening the period of time that players play for their teams.  All of these changes would make our game less competitive, not more.” 

I take no side here, and I suspect there are components of truth in the above quotation.   Yet, here we are beginning a negotiation with battle lines in place that will be fought daily with increasing intensity in the press, as the start of the season approaches.   I can’t help but imagine a far more benign process, behind closed doors, before a thoughtful and dedicated mediator, reasoning with both sides with all the details remaining in the room where it happens.  Utopian?  Perhaps, but rooted in decades of mediation history, arguably involving more delicate issues than a division of revenues among players and owners. 

What an opportunity to build bridges was lost in 2020!  Both sides had every reason to work together and provide some sorely needed distraction to a public desperate for some normalcy.  In doing so, MLB and the players could have collectively recorded a public relations coupe for the ages and built positive momentum toward the 2022 CBA.  Baseball stood to be the first and only sport being played from the onset of the pandemic and, perhaps, even generate more fans for this pastoral sport in an age of instant gratification.  Now both sides must draw water from the same poisoned well.  And if there is no 2022 baseball season, both sides lose [again] – along with all of baseball fandom.

See you at the ballpark [I hope]!

Frederick P. Alimonti is a senior partner at Alimonti Law Offices, P.C. in Valhalla, New York.


The Method, Madness, and Mystique of the Mediator’s Proposal:
Mon Oct 18
Confrontation in Mediation: Making Your Case in Mediation Without Alienating
Fri Jul 8