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The Collective Bargaining Agreement: Mediation Begins

NOTE: This is the eighth in a series of articles about collective bargaining in the NBA. We often hear about the NBA’s Collective Bargaining Agreement when issues arise with contracts, trades, lockouts, strikes, and player disciplinary proceedings. This series seeks to enhance the understanding of the CBA by providing context to the creation and implementation of the governing document between the NBA and the National Basketball Players Association.

Professional basketball could easily be described as a ballet of giants played out on a chessboard. Power, physicality and grace blended together in a beautiful exhibition of skill. Into this critical stage of negotiations walks the Svengali–a five-foot-six woman of moderately advanced years, or a six-foot-two-and-half man (a giant in the normal world) whose boat is named The Cancellation Fee. Enter the mediator.

The negotiation teams sit on opposite sides of the table, prepped by their chief negotiator. They know that the mediator will start with a brief introduction for both sides. Then the groups will separate, and the mediator will work the teams individually, before bringing them together to finalize the deal. They know that this brief time could establish an unalterable first impression. So the team members sit with posture erect, hands folded, in silent faux rapt attention. The teams want to convey–need to convey–that they are serious about negotiating, that they are serious people. They are on their best behavior. 

Bargaining team members have been prepped that they are about to start a long, grueling process. This negotiation session may be like the others–a short, two or three hours, or it could be 12, 18 or even 24 hours, depending on the mediator and the sense of urgency from the teams. Some mediators will go around the room asking bargaining team members to introduce themselves. Others will quickly pull the teams apart to start going over proposals.

The crossing of swords is initiated when the mediator asks each chief negotiator (in the big room with all present, or in a side hallway with just the mediator and chief negotiators) for the status of negotiations. This simple request will not seem to be the start of the persuasive process. It is. It is each chief negoitiator’s first opportunity to produce a summary, a spreadsheet, a chart or an elevator speech that will prove their command of the process. It is like winning the opening tip of the game. This twenty second interaction could set the table for the rest of negotiations, establishing to the mediator which negotiator should be relied upon to clarify confusions. 

The mediator may have received each party’s open proposals prior to the session, but will soon separate the bargaining teams from each other. Every open proposal will be reviewed by the mediator, asking for explanations from the team. The chief negotiator may be the only team member responding, but the team might decide at this point to allow more speakers so the mediator can truly understand the depth of concern. The chief negotiator will need to ensure that this does not turn into Festivus’ “Airing of Grievances,” but knows that some of the team members will need to concede points. Letting the team members speak and emote could lubricate that movement at a critical juncture later in the process.

The mediator will be studying the room, studying the personalities, and studying the power dynamics of the team. The mediator will look to see whose position will have to be changed, and who is seen as a leader within the team. If the five “No’s” are Chris Paul, LeBron James, Andre Iguodala, Anthony Tolliver and Garrett Temple, the mediator must know if every vote must be changed individually, or will flipping Garrett Temple flip all the others, two of them, etc.? Finding that out will enable the mediator to focus the process towards a negotiated deal.

An experienced chief negotiator often has a prior relationship with the mediator from other negotiations. That relationship was likely positive, or the mediator would not have been approved by both sides. This positive prior relationship is necessary, because there will be times when the chief negotiator must turn into Master Thespian. 

At critical points, a good negotiator must be prepared to push, challenge, and even fight their own bargaining team to move off of a position. If the bargaining team has the slightest sliver of doubt in the chief negotiator, the process will fall apart at that point. How to prevent this? In front of the mediator, in front of the team, the chief negotiator may let their Irish out and lose their temper. Explode in rage at the audacity of the other team, at the virtue of their own team, and at the mediator’s failure to grasp their epistemological righteousness. Such an explosion should be an act (a good negotiator never loses their cool), designed to bank a thousand credibility coins for that critical moment when the team must be pushed further than they think they want to go. And a good mediator knows it’s an act, knows the reason for the act, and knows that the act may be key to a deal. So the mediator plays along without taking it personally.

After meeting with each team individually, and going through this diagnostic investigation, the mediator will likely pull each chief negotiator into the hallway, or a side room, to discuss logistics. That will be the frame of the request, so the rest of the bargaining team does not get suspicious. And there will such discussions–how long are we going to meet today, do we think we think we can get a deal today, how many sessions will we need? But the mediator will also start probing–how far apart are we? Which positions might there be flexible? What do you need me to be, and who should I be working? The chief negotiators will give hints (that they will, of course, deny the first chance they can) about how negotiations might, hypothetically, proceed. Mini-packages will hypothetically discussed.

The chief negotiators will return to their teams, and update the members on everything said that was unimportant, but not on anything that was actually important. If the decision is made to continue the process then, the mediator will go in with one team to begin a deeper dive, scrape and push. The other side will order food and wait, likely for hours. Every fifteen minutes, one bargaining team member will wonder, “What is taking so long?” or “What could they possibly be talking about?” The chief negotiator may try to get the team to talk proposal positions, or might just take a step back and talk about unrelated matters–so what the hell is going on in Watchmen?

At some point, the mediator will return after speaking to the other team, and the really hard work will begin. The gap is getting closer, but moving an inch is getting tougher. Using mediation to get across the finish line is the subject of our next article.

Ken DeStefano
Ken DeStefano is an attorney in New York with over 15 years experience in the field of labor law and collective bargaining.

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