Baseball Mediation — Don’t Strike Out

To paraphrase Yogi Berra, mediation is 90% mental. The other half is emotional. Once you realize that, the battle is halfway won.

In baseball, under the terms of the collective bargaining agreement, a "Final Offer Arbitration” is offered for players who have not yet earned free agency. FOA forces an arbitrator to select the final offer of one of the parties, instead of crafting a decision independently. It’s an “either/or” situation. Because of its notoriety and connection to multi-million dollar baseball contracts, FOA is commonly known as Baseball Arbitration.

But have you heard of Baseball Mediation?

Baseball Mediation, once the parties reach an impasse and no forward progress seems reasonably likely, allows everyone to step up to the plate and play ball. Get the parties to agree to submit final offers to the mediator and ask the mediator to make an either/or decision, picking one of the offers as the final resolution of the case. The parties will have to agree to accept the mediator’s decision as the final settlement.

If this seems odd to you, think about a Mediator’s Proposal. It’s a very similar concept — almost two sides of the same coin. With a Mediator’s Proposal, the mediator comes up with the proposed settlement terms and it’s up to the parties to accept or reject. In Baseball Mediation, the roles are functionally reversed.

Interestingly, as the ADR Times notes, “a player who prevails in salary arbitration receives an average of 39% more money. Despite this significant incentive, 80% of the players who file for salary arbitration settle beforehand.” While I do not have similar stats to present to you for Baseball Mediation, I think you’ll be surprised at how quickly it can bring the parties together.

Ask your favorite mediator if he/she does Baseball Meditations. If the answer is no, then it might be time for a new favorite mediator.