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The NFL Can Make a Difference by Choosing Mediation

by Gerald Clay
February 2018 Gerald Clay

Introduction

A group of protesting NFL players recently submitted a request to enter formal mediation with the NFL owners and management. Their stated belief is utilizing a neutral third party mediator is more likely to produce results and move the discussion forward. They are absolutely correct – this situation screams out for mediation! The NFL has the opportunity to both resolve its player dispute and help bring about positive social change. Here is how that process would work.

NFL

Sometimes unnoticed events can affect huge changes in society, and we are at a potential crossroads of American history.

In early November a group of protesting NFL players, including Eric Reid of the San Francisco 49ers and Michael Bennett of the Seattle Seahawks, submitted a request to enter formal mediation with the NFL owners and management. Their stated belief is utilizing a neutral third party mediator is more likely to produce results and move the discussion forward. They are absolutely correct – this situation screams out for mediation!

In fact, there are a series of mediation techniques called “Facilitative Mediation” that could be applied.  Here is how it would work:  

Step one: Build trust.

The mediator would first have to develop a rapport with the players and provide a confidential forum for them to relate their personal reasons for protesting. The mediator can and should create an environment where the players can freely express why they feel so strongly they are willing to potentially breach their contract. Some of their reasons might be personal experiences of racial injustice, while others might have to do with perceptions of systemic injustice.

One of the great benefits of this technique is it allows the players to air their grievances without fear of being attacked or dismissed. The other advantage to keeping this forum confidential is some of the players’ opinions and experiences might provoke a defensive or visceral response from the owners if they were presented face-to-face.  Once parties become emotional and defensive, talks tend to stall.

Step two: Brainstorm.

The mediator would next work with the players to brainstorm potential actions the league and owners could take to address their concerns. Everything would be on the table. Some of what the players might want may seem radical or unpalatable to the league which is why, again, the confidential setting is appropriate. However, it seems certain that providing a platform and funding to discuss issues of race and inequity, using the NFL’s enormous reach to provide visibility to an issue its players consider pervasive and underexplored, would have to be part of any solution.

Since the list of grievances is sure to be long, the list of solutions would likely be as well. However, the process would not have to be entirely negative brainstorming. Rather, it could be used to explore the black players’ positive feelings about America and the game of football.  Moreover, it could include the ways in which the players could work with, rather than in opposition to, the league to promote better outcomes for all.

Step three: Distill.

The mediator would then have the players to vote and winnow down their requests to three or four primary items. The mediator would give the players a preview of his intended discussion with the owners so they understand how their goals and position will be presented. This is why the first step of establishing trust is so crucial to the process. An experienced mediator would be able to help the players reach some consensus as to what they hope to accomplish.

Step four: Present.

The mediator would meet with the owners and management and use the same techniques to build rapport and gain their trust. He would allow them to discuss their concerns and relate their views on the protests. These concerns would certainly be financial, but they might be personal as well, relating to respect and disrespect for the national anthem. 

Slowly, the mediator would then introduce the ideas from the players, allowing the owners to comment on each one as it was presented.  Again, having a confidential setting would allow them to air their own grievances, and react to the ideas, without worrying about how they would be perceived by the players or the public. 

The Mediator could then also explore the owners’ interest in having the players not only stand for the national anthem, but to positively recognize the greatness of America and the greatness of professional football.  To that end, the mediator would encourage the owners to brainstorm their own ideas about how to use their billion dollar stage to address the players’ concerns.

Step five: Repeat.

Just as with the players, the mediator would give the owners a preview of his intended discussion with the players so they understand how their goals and position would be presented. He would then return to the players with the owners’ reactions and ideas, and continue the process.

Mediation isn’t about winning and losing, it’s about finding common best interests.

Obviously this is a simplification of the process, but it is an incredibly powerful framework for how to resolve a public and divisive issue. Viewing this issue as one of winning and losing, or as simply a contract dispute, is not only counterproductive, it misses the opportunity to use this a springboard for positive change.  Mediation recognizes as one of its core tenets that differing interests do not necessarily have to be conflicting ones.  This dispute is a perfect example of that.   

A mediator’s goal would be to have the players’ most important ideas about how to shed a light on racial inequality to be implemented.  It would also have the owners’ concerns addressed and for the players to not just stand for the national anthem but to recognize the greatness of the game of football and the greatness of American society to change.

The progress our country has made with regard to race, though far from complete, is significant, from the Emancipation Proclamation, to the 13th, 14th, and 15th Amendments, to the Voting Rights and Civil Rights acts.  At each juncture, however, change didn’t come without agitation and conflict. Here, now, a group of NFL players have offered league owners and management an opportunity to not only end the PR nightmare of the kneeling protests, but to play a role in bringing about real and lasting change in our society, and to do so using a better method of conflict resolution.  They should seize that opportunity and enter mediation. 

Biography


A popular and frequent lecturer on the topics of mediation and construction law, Gerald (Jerry) Clay, has been a practicing attorney for over four decades, and a vocal advocate for Alternative Dispute Resolution (ADR) for almost as long. Since training as a mediator in 1984, he has mediated or arbitrated over a thousand construction, commercial, and real estate disputes, and is a recognized pioneer in ADR application to construction and business. Jerry is the co-author of the popular book, “Before You Sue,” an introduction for the public at-large to mediation and its benefits. In addition to practicing law, Jerry is an adjunct professor for Hawaii Pacific University’s MBA program and has also served as an adjunct professor at the University of Hawaii Law School. He is the former president of the Mediation Center of the Pacific, a fellow in the American College of Civil Trial Mediators, and a member of the National Academy of Distinguished Neutrals.



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