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Mediation: Worth a try, but maybe too late?

Federal mediator George Cohen speaks at a news

Federal mediator George Cohen speaks at a news conference following the end of talks in the NBA labor negotiations. (Oct. 19, 2011) Credit: AP

If it’s a way to get the two sides back to the table, federal mediators in the room can’t hurt.

And if it doesn’t pan out---the process is non-binding---the Fehrs and The Commish and the Deputy Commish can go back to their constituents and say: “We took a shot.”  Listen, George H.Cohen, the director of the Federal Mediation and Conciliation Service asked to join, not the other way around. In my opinion, and wrote it several times, this should have been attempted earlier.

Here’s what we know: The at-odds NHL and NHLPA will receive a new perspective on the three-month lockout this week, but whether the stalled negotiations will advance is anybody’s guess.

Maybe a shortened season all does come down to the Board of Governors meeting on Dec. 5 and this is just wheel-spinning.

Cohen, who was involved in the recent NFL and NBA labor negotiations, reached out separately to the league and the union, and both agreed to the intervention, which will begin in either New York or Washington.

“With the agreement of both parties, the ongoing negotiations will now be conducted under our auspices,” said Cohen, who has been speaking informally with the two sides, and initially assigned Deputy Director Scot L. Beckenbaugh, Director of Mediation Services John Sweeney, and Commissioner Guy Serota to be the mediators.  Cohen later removed Serota because of “issues involving an allegedly hacked Twitter account associated with (Serota).”   

Cohen, a respected litigator who was with the NLRB, was appointed to the agency by President Obama in 2009.  He assigned the mediators because he is not entirely independent: He worked with the Major League Baseball players association as an outside counsel and was an adviser to the NHL players' union.

In the NBA conflict, Cohen mediated twice and the union petitioned to decertify, a process that is being discussed by the NHLPA, and filed an anti-trust suit before negotiations resumed and a deal was reached to preserve a 66-game season. Cohen’s efforts couldn’t prevent the NFLPA from dissolving and having players file class-actions suits, which led to court-ordered mediation.

But back to the ice, where the accusatory sides have been deadlocked on a new collective bargaining agreement, triggering the cancellation of 434 games through Dec. 15, the annual Winter Classic on Jan. 1 and the All-Star Game on Jan. 26.

There’s been no bargaining since last Wednesday, when a union proposal for a five-year deal was not greeted warmly. NHLPA executive director Donald Fehr said the sides are $182 million apart on honoring current contracts over the term of the deal, but not close on issues such as free agency eligibility.   

"While we have no particular level of expectation going into this (mediation) process,” Deputy Commissioner Bill Daly said, “we welcome a new approach in trying to reach a resolution… at the earliest possible date.” Said Fehr: “We look forward to their involvement as we continue working to reach an equitable agreement.”  During the last lockout, mediators stepped in several times, but the season was cancelled on Feb. 16, 2005 


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