Tag Archives: mediation

Guest Post: Approaching Mediation in the NFL Concussion Litigation

(Editor’s Note: The following post comes from NFL Concussion Litigation (http://nflconcussionlitigation.com/), the nation’s leading blog focused exclusively on the NFL concussion litigation)

By  Timothy J. Bucher, Esq.

On July 8, 2013, with the highly anticipated ruling on the NFL’s motion to dismiss looming, Judge Anita Brody took many by surprise when she ordered the parties in In re National Football League Players’ Concussion Injury Litigation to mediation.  Despite any undertones that the order may have revealed toward Judge Brody’s likely disposition on the matter, the order gives the parties a unique opportunity.  With settlement seemingly a distant possibility prior to the order, the parties now avoid years of painstaking litigation by crafting a resolution through mediation or, at the very least, develop a better understanding of the issues (which may pave the way for a settlement further down the road).  And as the mediation begins, the parties can build upon the professional sports industry’s recent embrace of mediation as a dispute resolution mechanism.  Mediation contributed greatly to resolutions in the recent labor disputes of the NFL, NHL, and MLS (and was also used during the NBA’s labor dispute, albeit with less success).  In the NFL’s recent mediation experience during the league’s labor dispute, the owners and players took part in three separate mediations.  Those specific sessions can serve as a guidepost for the parties in the NFL concussion litigation as they attempt to resolve their issues through mediation.

Mediation, a form of alternative dispute resolution (“ADR”), is a self-determinative process, similar to negotiation (though instead with a neutral party at the helm), in which the parties determine a resolution rather than a judge, jury, or arbitrator.  Despite being court-ordered in many instances, mediation is still voluntary.  If a party withdraws from mediation, the litigation simply resumes.  Moreover, the mediator cannot disclose anything said or done during the mediation to the court or to others (with some exceptions relating to the well-being or safety of others), and the discussions have no legal effect.  Though mediation seems straightforward, for it to succeed in an industry as unique as professional sports, each party (including the mediator) must be cognizant of the many factors that can affect respective motivations and strategies and, in turn, a resolution.

For the NFL concussion litigation, in particular, the success of the mediation can easily be determined at the outset when appointed mediator and retired federal judge Layn Phillips decides how to conduct the proceedings.  He can have the parties (whomever they send as representatives) appear at each session face-to-face (“joint sessions”) or in separate rooms with the mediator as an intermediary (“shuttle diplomacy”), or he can choose to utilize a combination of the two.  Joint sessions may spur an immediate starting point.  However, they are not appropriate in all situations, especially where the underlying emotions or nature of the issues may detract from fruitful discussions and cloud the path to settlement (As a former ADR professor of mine and mediator tells parties, “Mediators are not therapists”).  Shuttle diplomacy also presents obstacles, as it too may impair the parties’ ability to engage in candid dialogue.  The lack of face-to-face discussions was a common complaint among players in the two failed mediations in the NFL’s labor dispute.  There, as a last ditch effort, the parties engaged in several marathon joint sessions, which ultimately aided in the parties’ reaching a settlement.

With the NFL concussion litigation, the gravity of the claims at issue (i.e., wrongful death, fraudulent concealment, fraud) may suggest that it be more prudent and practical to separate the parties.  Still, wading through the complex issues of the case may not be feasible if the parties are separated given the number of parties involved and the time and money that is required for any protracted discussions.  These are all factors that Judge Phillips must consider when deciding how to conduct the mediation; a decision that may seem trivial but will undoubtedly have a great impact.

Another seemingly insignificant yet determinative wrinkle to the process is the parties’ commitment to confidentiality.  Surely, the media has and will continue to report on concussions in the NFL, which have rightfully become a matter of great public interest.  Still, the order to mediate explicitly requires that the parties refrain from any public disclosure regarding the discussions.  The decision to leak details of the talks or to wage a publicity war while mediation is ongoing not only violates the court’s order but also eliminates any semblance of trust between the parties.  For example, in the NFL’s labor dispute, the court imposed a confidentiality order regarding the mediation, yet both the parties and the omnipresent “anonymous sources” routinely disclosed intimate details of the talks.  This hindered any progress and, not surprisingly, contributed to the failure of the first two mediations.  Only once the parties made an effort to maintain confidentiality were they able to reach a mediated settlement.

The high-profile nature of the NFL concussion litigation assures that there will be similar confidentiality issues.  Neither the media nor the public are bound by the order and undoubtedly have no intention of respecting it, so it is up to the parties to prevent any detailed information from being disclosed.  If media reports surface with any details of the talks (nothing has leaked as of yet), take that as an early indication that not all parties are serious about mediating toward a resolution and that the parties will find themselves back in court.

Lastly, imperative to the success of the mediation is the parties’ preparation for and approach to the discussions.  More specifically, a concept or strategy that often gets overlooked in negotiation (and, in turn, mediation) is grasping the value of one’s “best alternative to a negotiated agreement” (“BATNA”).  Simply put, this concept consists of a calculated balancing of the relative extrinsic and intrinsic benefits that settlement and its alternatives offer.  If a party’s BATNA will lead to a better result than a projected settlement, that party is best served to follow the alternative.  But as the circumstances of a dispute change, so, too, do parties’ interests, the relative balance of power, and whether settlement does, in fact, outweigh the alternatives.

For example, in the NFL’s labor dispute, the first two mediation attempts occurred while the district court and court of appeals, respectively, were close to issuing significant rulings in each case.  Despite the uncertainty involved, each party seemed to believe that their BATNA—continuing with litigation—outweighed settlement. But by the third mediation, the parties’ alternatives had changed.  Without a settlement, the parties would be faced with a prolonged lockout.  As their alternatives narrowed, the parties became more aware of and focused on engaging in interest-based bargaining (i.e., exploring mutual gains), which ultimately aided in a resolution.

Similarly, the NFL concussion litigants find themselves mediating with the court’s pending ruling on the motion to dismiss in the backdrop.  Either side may adopt the belief that they are better off waiting for Judge Brody’s ruling rather than to mediate.  But if the parties were to adopt an interest-based bargaining approach, they may find settlement at this early stage of the litigation to be advantageous.  Consider the many nuanced issues of the dispute.  Even if the litigation were to survive past the motion to dismiss stage, the court may simply be unable to provide the parties with adequate remedies.  For instance, the plaintiffs’ claim for medical monitoring presents several obstacles for the plaintiffs from both a practical and legal standpoint.  Across the aisle, the NFL is undoubtedly aware of the effect that prolonged litigation and factual discovery may have on its future liability, image, and, ultimately, bottom line (see, for example, the recent internal emails from the NCAA concussion litigation).  Mediation enables the parties to address these issues and contour a mutually-favorable resolution.

If the NFL concussion litigants are to maximize the benefits of mediation, they must be mindful of the foregoing factors, which are by no means exhaustive.   Even if the effort does not lead to an immediate settlement, the parties’ candid dialogue, respect for confidentiality, and willingness to engage in interest-based bargaining can pay dividends in the future.  The experience may provide the parties with a better understanding of the underlying issues or interests, temper expectations, and serve as a catalyst for future settlement.

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Attorney Suggests that Judge’s Decision to Mediate Not in the Best Interest of the Plaintiffs

Michael Kaplen, a New York based attorney concentrating his practice on representing victims of brain trauma, has concerns about U.S.District Court Judge Anita Brody’s decision to send the NFL/Ex-players’ concussion issue to mediation.

For one, it perpetuates, in his view, “the long standing conspiracy by the National Football League, its teams and physicians to conceal the fact that football is a concussion delivery system with potential lifelong devastating consequences to players.”

Secondly, bringing both parties “to the negotiating table will prevent factual discovery.”

In Kaplen’s words, factual discovery is “the only mechanism that could compel the league, and its collaborators, to reveal incriminating documents and be compelled to provide sworn testimony about what they knew, when they knew it, and how they contrived to keep this information from players.” Obviously, this is a significant point.

Such “potential revelations” are significant to “not only to the players who have been deceived and are confronted by the lifelong physical, emotional and behavioral consequences of brain injury, but additionally for young athletes who admire and revere professional athletes and presume that the NFL takes care of its own.”

Another concern of Kaplen’s is the inclusion of confidentiality clauses in any mediated settlement. It allows the league to continue to hide the facts; “that a concussion is a brain injury; that the lingering consequences of even a single concussion can plague a player for his lifetime; that multiple concussions complicate and slow the speed of any potential recovery and increase the chances of devastating long term disability.”

Another stickler is the failure of player reported symptoms—those who do so, risk being cut, therefore the athlete hides his injury. According to Kaplen, “any mediated settlement of the present case must protect future players by removing this economic disincentive and insuring that any player who suffers a brain injury retains the full monetary benefit of his contract.”

Kaplen goes on to say that, as far as medical personnel is concerned, “league doctor shopping and the corruption of accepted medical principles cannot continue to be condoned.”

All of this comes down to the truth–it counts! The pure, unadulterated truth, no less. And the public demands that.

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Judge Orders Mediation for NFL Concussion Litigation, What Does It Mean?

A federal judge from the Eastern District of Pennsylvania  has ordered the parties in the NFL concussion litigation issue to submit to mediation in hopes that the litigation can be resolved in a timely and cost-effective manner.

Specifically, District Court Judge Anita B. Brody asked Layn Phillips, a retired federal judge, to serve as the mediator.

In tandem with that decision, Judge Brody said she would not rule on the NFL’s motion to dismiss the case until Sept. 3, instead of July 22 as originally planned.

The league responded with the following statement: “We respect and will comply with the court’s order regarding mediation and will be available to meet with Judge Phillips at his direction. We have received the order and will follow the court’s directive. Per the order, we will have no further comment on this process.”

While the mediator may not be able to resolve the litigation, the hope is that Philips can at lease narrow some of the issues.

Various experts weighed in:

“It would be a great feat for the mediator to settle the case,” Gabriel Feldman, the director of the Sports Law Program at Tulane University, told the New York Times. “He might bring them closer, but to what? This is complex litigation. A settlement here would be dollars going to the plaintiffs, and I’d be surprised at this early a stage for the N.F.L. to give a large settlement.”

“Presumably, the judge is experienced and he can give both sides an appraisal of the case from the perspective of someone who’s sat on the bench,” Matthew J. Mitten, a mediator and the director of the National Sports Law Institute at Marquette University, told the New York Times. “It doesn’t hurt to take a step back and take a reality check.”

In addition, Paul D. Anderson, an attorney and editor of NFLConcussionLitigation.com, weighed in with the following:

In a hail-mary-like play, Judge Brody ordered the players and the NFL to engage in mediation to determine IF a resolution is possible.

Though a resolution is unlikely – at this early stage of the game – this order signals a few things.

First, instead of ruling on the NFL’s Motion to Dismiss on July 22, as previously scheduled, Judge Brody decided to hold off.


I think she knows, and she wants the parties to be aware, that both sides are vulnerable. Now is the time to stop the train before it begins its tumultuous path to protracted years of litigation. More deaths. More pain. More suffering. More money expended on legal fees.

This, in turn, implies that her forthcoming ruling is NOT going to be in favor of the NFL. It indicates that Judge Brody is going to DENY the NFL’s Motion to Dismiss — at least in part, if not in full.

Second, Judge Brody is giving the NFL a wake-up call before things get heated. I think she believes the players’ claims have merit — even beyond a motion to dismiss.

Step VIII in the Ten Steps to Better Case Management: A Guide for MDL Transferee Judges states, “[a]s soon as you are satisfied that plaintiffs’ claims have at least some arguable merit,” suggest mediation.

Well, Judge Brody—the transferee judge—did just that. She is satisfied the players’ claims have merit.

Merit does not equate to SUCCESS, yet.

It does, however, give the plaintiffs’ a key to the NFL’s potential dirty laundry. DISCOVERY is on the horizon if a resolution is not found.

Either the NFL can keep its dark secrets sealed, or it can roll the dice and push forward with discovery. The plaintiffs’ lawyers’ leverage increases as they inch toward a jury trial(s).

Third, mediation is not binding. Both sides go into mediation with their own agendas and inflated egos.

It’s an early opportunity for the parties to size each other up.

The players will have a dollar figure in mind, likely north of $8 BILLION. And, the NFL will also have a resolution in mind: another charitable trust.

Whether actual dollars are discussed and proposals exchanged during the course of the next two months will be up to the Honorable Layn Phillips.

But, if the past NFL lockouts–with the players and the referees–were any indication as to how the owners do business, I wouldn’t hold your breath that a resolution is near.

The NFL still has an arsenal of defenses, even if discovery proceeds. There is a chance the NFL could cut the entire plaintiffs’ pool (i.e. 5,000+) in half with various defenses and motions.

The owners are asking themselves, “Why concede defeat now when we could contain cost later?”

Umm, because the NFL is image conscious and it is taking a severe beating in the court of public opinion. Because “later” could also mean multiple HUGE verdicts if these cases ever see a jury. Because football is at a “crossroads” and the NFL needs to regain control of the dialogue.

The owners could still come out of this battle unscathed–other than a few billion lost–if it never admits and/or discloses exactly what it knew and when it knew it about brain injuries.

This leads me to my final point.

Judge Brody threw the NFL an early bone. The ball is now in the NFL’s court.

Either they can acquiesce to the players’ demands and put the NFL Concussion Litigation in the early historical chronicles of major sports litigation, OR, dismiss the plaintiffs’ demands and “awaken a sleeping giant.”

Here’s to a resolution.

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