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In THe News
Mediators Seek Peace Amid Labor Wars
(From left to right) Marilyn Pearson of DLA Piper, Thomas Jeffery of Federal Mediation and Conciliation Service and Marvin Gittler of Asher, Gittler and D'Alba last year negotiated an end to a one-day musicians' strike at the Chicago Symphony Orchestra. Photo by Lisa Predko.

When Arthur J. Boylan received the assignment to mediate the NFL's 2011 lockout, he said his fellow judges felt pity for him.

On top of his workload as chief magistrate judge of the Federal District of Minnesota, he now faced what many viewed as a mission impossible: Helping NFL Commissioner Roger Goodell and the NFL Players Association (NFLPA) Executive Director DeMaurice Smith reach a deal to end the NFL lockout.

One mediator already failed at the task. And in separate litigation concerning the legality of the lockout, the NFLPA revealed that owners anticipated a possible two-year suspension."I had some fellow judges come up to me after I got the assignment and they expressed some sympathy because I had all this work to do," Boylan said. "And I thought to myself, 'Are you crazy?' This is a career case that I'm just going to love to tackle."

After 115 days and 26 meetings, Boylan did just that. The warring factions signed a new collective bargaining agreement on Aug. 4, 2011, canceling only one game — a Chicago Bears-St. Louis Rams preseason matchup. "This was such a crazy litigation and crazy negotiations because we had so many topics and so many things going on in different rooms, to use a football metaphor it was just like being a quarterback," Boylan said.

Most people don't think of mediators as the star of negotiations the way they view NFL quarterbacks as leaders of their teams. News reports describing labor negotiations typically only mention a mediator's presence. But behind the scenes, mediators such as Boylan play a vital role in helping employers and employees break heated, often deadlocked, negotiations.

Understanding what they do and how they do it makes sense in a post-recession environment where mediators become increasingly common figures in news reports: Five work stoppages involving 1,000 or more employees occurred in the U.S. in 2009, the Bureau of Labor Statistics reported. The number of "major work stoppages" rose to 11 in 2010; 19 in 2011; and 18 as of November 2012.

Those numbers may not surprise many Chicagoans.

In 2012, the city endured the seven-day Chicago Teachers Union strike; the Chicago Symphony Orchestra's musicians took to the picket lines, canceling one performance; and hockey fans nearly missed an entire Blackhawks season due to the NHL lockout. Nine suburban school districts went on strike or filed paperwork to do so as of December.

At the same time, mediators find themselves dealing with more contentious issues. Changes to pensions and health benefits impact almost every negotiation. Employees can see those changes as an attempt to break promises. Employers view them as necessary to stay competitive or in business. "Pretty much every place where there are pensions or an employer provides health care, one, if not both, of those will be an issue," said Thomas Summers, director of mediation services for the Chicago area office of the Federal Mediation and Conciliation Service (FMCS). It provides taxpayer-funded mediators for public sector and private sector labor negotiations, such as the NFL and NHL lockouts.

"Our general suggestion when it deals with health care is to get early involvement of a mediator and sharing of information (between both sides) … because it's going to be a very big issue," Summers said.

As indicated in our disclaimer, the representations contained herein and throughout this web site are for informational purposes only and should not be taken or relied upon as legal advice.

© 2020 Asher, Gittler & D'Alba, Ltd. All Rights Reserved.

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