Column

Mediator Saves NHL & Players From Themselves

The pivotal role of Scot Beckenbaugh, Deputy Director of the United States Federal Mediation and Conciliation Service, in resolving the 113-day National Hockey League lockout provides an excellent case study in the art of high-stakes mediation.

Published accounts of Beckenbaugh’s role in the final week of make-or-break negotiations illustrate the key attributes that disputing parties should seek in any mediator.

Subject matter expertise:

Beckenbaugh was brought into the negotiations for his mediation skills, not his knowledge of the specific financial issues in dispute. He is not a “hockey guy”. His bio on the FMCS website mentions “extensive experience in public sector dispute mediation, as well as regulatory negotiations, public policy, land use and civil rights disputes” and notes his role in mediating national agreements in the cereal, heavy equipment manufacturing, aluminum and meatpacking industries.

But he does know professional sports. He was involved (unsuccessfully) in mediating the previous NHL lockout, which scrubbed the 2004-2005 season. According to the Globe and Mail,

… Beckenbaugh is developing a reputation as the go-to guy for stalemated pro-sports labour disputes. He helped end the National Football League referees strike last fall. He was among those called upon to assist with National Basketball Association labour talks in 2011, as well as Major League Soccer negotiations in 2010, and the unsuccessful attempt to rescue the NHL’s 2004-05 season.

This background was important for the mediator’s credibility with both sides, while retaining the independence and distance which was necessary to be an effective neutral. He was able to focus on the negotiation process, not the substantive issues in dispute. But he knows enough about the sports business to understand the interests behind the positions each side took – as well as their mutual interests in resolving the dispute and getting back to business. He could appreciate where each side had room to move and their reasons for doing so.

Building (or rebuilding) trust:

The negotiations were characterized by misunderstandings and lack of trust on both sides, particularly since the fight was very public and the parties did not meet for long periods of time. Leaks and speculation abounded.

Neither side has ever really recovered from the poisoned atmosphere caused by the 2004-05 lockout. At various times in the current dispute, each accused the other of not being serious and acting in bad faith. The league complained that the players failed to respond to proposals when they promised to do so and of scheduled meetings being delayed or cancelled. Negotiators for the players’ union thought the league was trying to take back previously-agreed points when they tabled new proposals with undisclosed changes.

For example, as reported in the Globe and Mail, a new offer tabled by the NHL on January 2 did not include some important language relating to the team salary caps.

The changes would lead to a day of nasty exchanges through the media.” David Shoalts reported in his January 12 Globe and Mail column, The untold story: How Shane Doan’s sincerity paved the way to the deal, which gave a day-by-day breakdown of the final week of negotiations. “Accusations were made through favoured reporters by both sides…

Beckenbaugh was able to sort out that dispute though the shuttle negotiations that eventually brought both sides back to the same room.

The mediator’s constant three-block walks over 13 hours Friday [January 4] between the NHL office and the hotel in which union representatives were staying laid the groundwork, calmed the anger, built the trust, and brought the sides back to the bargaining table for the 16-hour talks that finally led to an agreement,

according to an Associated Press story carried in The National Post.

Persistence:

Beckenbaugh was first brought in as mediator back in November, but his efforts did not result in a deal.

Observers have suggested many reasons why the January talks were more successful than earlier negotiations, including the looming deadline to salvage half a season and pressure from sponsors and broadcasters.

“When the moment is right, a deal will be done very quickly,” Steve Fehr, the union’s special counsel and the brother of NHLPA boss Donald Fehr, predicted in November. Quickly, perhaps, but not painlessly.

Dan Oldfield, lead negotiator for the Canadian Media Guild and former journalist, noted in a commentary on the CBC website that:

[B]oth participants and observers…repeatedly questioned the involvement of a mediator; some even suggesting efforts to mediate had failed. That view is understandable if you assume that success has to be measured against the outcome of every meeting between the parties. But, as I’ve said before …, negotiations are a process — not an event.

So, whether it was because the time was right or simply because all other efforts had failed, when Beckenbaugh was brought back into the negotiations in January, he was able to convince both sides to keep talking, make some key concessions and reach a deal.

As another commentator on the CBC website (Hawk43) saw things:

[T]he deadline may have been a factor but helping the parties finding middle ground and keeping egos and spite out of the negotiations certainly helped. Keeping them separated until anger subsided and cooler heads prevailed…

As Oldfield explained it:

You can bet he constantly reminded them how close they were. You can bet he reminded them of what was at stake, what they owed the fans and each other. And you can bet he offered lots and lots of suggestions. But primarily he kept them at the task.

When he realized the parties were close to a deal he brought them together and there was no way they were getting out of that room without one.

“At times during the final hours of talking, Beckenbaugh waited in the background while the sides continued to work,” reported Ira Podell, of the Associated Press. “Negotiations kept going without him, but the bargaining was buoyed because the NHL and the union knew he was there if trouble arose again.”

“These talks knew plenty of trouble and breakdowns and mistrust. As recently as talks that stretched into early Thursday [January 3], the process broke down. Beckenbaugh was there to fix the holes and get negotiations back on track,” Podell reported.

USA Today hockey writer Kevin Allen reported that when

negotiations, contentious throughout the process, boiled over … Beckenbaugh brought down the temperature … with some shuttle diplomacy and mediation. He went back and forth between the sides to determine where they had room to move on their positions.

“I’d been told by family and friends, ‘Lock yourselves in a room and don’t come out,’ ” Phoenix Coyotes captain Shane Doan was quoted by the Sporting News. “The mediator kind of did that. He kind of kept us going, and that was huge. Both sides got involved and got it done, and that was good.”

Acting as a neutral sounding-board

Negotiators for the league and the players were able to test new ideas on the mediator and to use him to float proposals.

“Scot was great for a number of reasons,” said Winnipeg Jets defenceman Ron Hainsey, a member of the player’s negotiating team. “When it got to points you didn’t know what to do next, you could go to him and talk to him about it and there was a way to work your ideas through a third party who was really able to help the process.”

Confidentiality and discretion:

There has been no shortage of accolades for Beckenbaugh since the settlement was announced. Fans and commentators have suggested he should receive the Order of Canada or the Hart trophy, as the league’s Most Valuable Player, even a place in the Hockey Hall of Fame.

“If there ever was a hockey god, Beckenbaugh would be amongst the most supreme choir of angels,” said Andrew Hewitt, on the Hewitt Sports Network blog.

Meanwhile, Beckenbaugh himself has been determined to stay firmly in the background. Both during and after the negotiations, Beckenbaugh let others do all the public talking.

NHL Commissioner Gary Bettman made a point of thanking him at the press conference announcing the settlement. So did several player representatives.

“Scot Beckenbaugh, next time I’m in NYC, dinner is on me,” Edmonton Oilers center Sam Gagner said on Twitter. “Thanks for helping get us back on the ice.”

In a statement made after the settlement, Beckenbaugh’s boss, FMCS director George H. Cohen, said,

I want to recognize the extraordinary contribution that my colleague, Scot Beckenbaugh, Deputy Director for Mediation Services, made in providing herculean assistance of the highest caliber to the parties throughout the most critical periods in the negotiations.

On Twitter, @michaelgrange said: We asked Scot Beckenbaugh for comment on his status as the NHL’s off-season Hart winner he declined: “I’m as famous as I want to be.”

In response to a request for an interview from Hockey Night in Canada Radio Beckenbaugh wrote in an email:

I am … deeply touched and grateful for all the kind words and good wishes expressed by hockey fans everywhere. Especially, of course, from Canada…

The ethics of my profession always prohibit the discussion of specifics of any mediation that I conduct. The responsibilities of my position only add to those ethical obligations.

…this is still an “active case” for me and will remain so until an agreement is fully executed and ratified. There are still very important steps to be taken and decisions that must occur.

Jesse Spector of the Sporting News summed it up perfectly:

Beckenbaugh’s role in ending the lockout cannot be overstated. The level of distrust between the NHL and NHLPA was tremendous, with the league believing that Fehr had little interest in making a deal, and the union finding unadvertised poison pills in proposal after proposal from ownership. While little separated them on the key issues for the last month, actually getting a deal done required putting aside greater differences. Beckenbaugh was the man for the job.

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