by: Joan Walters
Republished with permission from The Hamilton Spectator
(May 21, 2009)
When Arizona judge Redfield T. Baum ordered the NHL and Coyotes’ owner Jerry Moyes to take their dispute over who controls the team to mediation, one of his motives was to drop the temperature in an increasingly bitter fight.
“Something’s got to happen fairly soon or it’s going to get ugly, right?” Baum said as he hived off a key question in the dispute to an out-of-court mediator.
The rest of the complicated case—which pivots on BlackBerry billionaire Jim Balsillie’s attempt to buy and move the Phoenix team to Hamilton—continues to simmer its way through bankruptcy court.
Putting warring parties in a room with a calm, professional mediator trained to find creative solutions can be a good alternative to “the crap shoot” of litigation, says Allan Stitt, president of ADR Chambers, a Toronto mediation firm.
“When people are in these situations, the default is simply to argue,” says Los Angeles lawyer Jeff Kichaven, a professional mediator.
With egos as big as those in this case, and stakes in the hundreds of millions, it’s no surprise to experts in alternative dispute resolution that Baum chose mediation. It’s an increasingly popular option across all types of law.
This mediator—who is not yet named—needs to be familiar enough with the National Hockey League and professional sports to understand what’s going on, but also conversant with commercial and bankruptcy law. And, given the entrenched positions in a case dubbed “Dogfight in the Desert,” this mediator will need strong negotiating talent too.
“I get calls all the time where somebody says we’d like you to mediate this dispute but here’s the problem,” says Stitt, who also serves as chair of the Sports Dispute Resolution Centre of Canada.
“They tell me: We’re really far apart, we’re really firm in our position, we won’t move and we don’t want to make concessions. I never get calls from people saying we’re really close, we get along well and everybody wants to get creative.”
“That’s what everybody has been doing here. But a smart mediator will not engage in arguments with anyone over anything.”
A mediator tries to get to the heart of each party’s underlying needs and help sort out what options exist to reach them.
One of a mediator’s most important functions is to block useless bickering.
“When people are in these situations, the default is simply to argue,” says Los Angeles lawyer Jeff Kichaven, a professional mediator.
“That’s what everybody has been doing here. But a smart mediator will not engage in arguments with anyone over anything.”
Instead, a mediator will ride it out, keeping the parties as cool as possible, until those involved are convinced into their own solution.
“When it no longer seems like quite such a fresh wound emotionally, then mediation gives people a forum in which they can gracefully turn the corner,” Kichaven says.
Even so, the parties have to want to be there and to work.
Kichaven says there are many situations “where everybody shows up with their arms folded and their body language uptight and it’s just clear from the outset that they have no interest in making a deal.”
And from time to time, mediation simply does not work.
“Sometimes—if one side really is stubborn, irrational, highly emotional—the smart thing for you to do is continue to court,” he adds.
It was a book called Getting to Yes by a couple of Harvard University professors that originally ignited widespread interest in mediation as an alternative to court.
First published in the 1980s and revised in 1991, the bestseller was written by Roger Fisher and colleagues to set out step-by-step strategies that deliver mutually acceptable agreements in a conflict.
Mediation has grown tremendously in the last 10 years, says Stitt, the Canadian expert, and it is an obvious tool for this fight.
Moyes, owner of the ailing team, filed for bankruptcy May 5 as part of a deal with Balsillie to buy the Coyotes for $212.5-million US, conditional on a move to Hamilton.
The NHL, supported by the NFL, Major League Baseball and the NBA, has asked the bankruptcy judge to rule that the league has a right to determine who owns a team and where it plays.
The specific item for mediation is the NHL’s argument that Moyes had no authority to file for bankruptcy because the league began controlling the team last fall.
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