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The Globe and Mail

Mediation ‘did not work in football and basketball,’ but NHL will give it a go on Wednesday

The home ice of the Detroit Red Wings is shown empty at Joe Louis Arena in Detroit, Tuesday, Oct. 19, 2004.


So long decertification. Hello mediation.

Frustration? It's not going anywhere.

On Day 72 of a lockout that feels as if it has another few rounds in it, the NHL and the National Hockey League Players' Association agreed on Monday to allow U.S. federal mediators in on the party.

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The proceedings will resume on Wednesday in a secret location.

The two sides will be joined by specialists from the Federal Mediation and Conciliation Service – deputy director Scot Beckenbaugh and director of mediation services John Sweeney – who will attempt to bridge the narrow gap that has led to the cancellation of the first two months of the season.

(A third mediator, commissioner Guy Serota, was turfed from the case due to an off-colour Twitter account mere hours after being put on the case. So the FMCS is off to quite a start.)

"While we have no particular level of expectation going into this process, we welcome a new approach," NHL deputy commissioner Bill Daly told reporters on Monday.

Mediation isn't a surprise at this point. Both the NFL and NBA went through it during their lockouts in 2011 and, other than consuming a few days, the non-binding process didn't solve much. The NBA experience was particularly relevant as it came almost exactly 12 months ago during what was supposed to be the early portion of that league's regular season.

George Cohen, the mediator in that case, coaxed the league and players into three marathon days of meetings that were kept largely out of the media. The end result, however, wasn't much progress.

"No useful purpose would be served by requesting the parties to continue the mediation process at this time," Cohen said at the end of Day 3.

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And that was it.

Jeffrey Kessler, a high-profile New York lawyer who served as the lead negotiator for the National Basketball Players Association last year, took part in the mediation sessions during both the NFL and NBA lockouts.

In the end, Kessler said the entrenched positions involved are the main reason why mediation solves little in professional sports labour disputes.

"It did not work in football and basketball," Kessler said. "Bargaining came to a standstill and mediation wasn't able to break through it.

"We tried," Kessler added. "In the end, the only thing that eventually led to a resolution was ending the union and litigating."

If that sounds familiar, it's because that's where decertification would come in. Multiple sources on the players' side said Monday that dissolving the union remains in play if negotiations continue to falter, even if a few days of mediation delays the legal manoeuvrings that would make that possible.

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The players believe they made significant concessions again in their offer last week, which included getting to a 50-per-cent share of revenues by Year 4 and working off the league's framework on a deal.

With no counteroffer apparently coming from the league, their frustration has led to talk of wiping out the union altogether as a means of gaining some leverage.

Kessler has been down the decertification road with the other two leagues – some would argue he was the one driving the bus – and remains a strong proponent of using the courts to push stalled negotiations forward.

"The only advice I can give to NHL players, is that it is a very viable option," he said. "It's one which I think greatly benefited players in the NFL and NBA when those decisions were made. They should consider it, along with their other options."

He doesn't hold out much hope for mediation, in other words.

"The reality is, in professional sports, you have very smart, sophisticated negotiators on both sides," Kessler said. "There's no one who's more experienced in negotiating labour agreements than Don Fehr [executive director of the NHLPA]. And equally so I'd say Gary Bettman [NHL commissioner] and Bill Daly are very experienced negotiators.

"I don't know that the mediators are really the problem. The problem is the positions are so intractable."

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