On Tuesday, Magistrate Judge Arthur Boylan is getting up to speed as to the players’ side of the ongoing labor dispute, in preparation for mediation. On Wednesday, he’ll meet with the owners’ side. On Thursday, everyone will convene for the commencement of mandatory mediation.
The order from Judge Susan Nelson setting mediation, a copy of which we have obtained, requires the lawyers and “a party representative having full authority” to attend.
This means that the named parties must be there or they must be represented by someone who has the ability to make binding decisions without any further phone calls or consultation.
It’s one of the most commonly violated aspects of court-ordered mediation, especially when corporate entities are involved. When, for example, a large company is sued, the representative at mediation has “full authority” to settle the case -- but only on the terms that his or her superiors have authorized settlement. If the representative needs to make a call in order to get greater authority, then the person who is called is the person who should have been the representative.
The reality is that judges rarely enforce this rule, even when it’s obvious that, for example, the local manager of a big-box retail store with thousands of locations throughout the world surely does not have the ability to bind the corporation to a seven-figure settlement. Most judges simply don’t want to get their hands dirty in such matters -- and many of those judges realize that, short of dragging the board of directors to the courthouse, a person with full authority never will actually be attending.
In this case, look for the court to be more demanding, and to require the involvement of a representative for all parties (the 10 current players, the 32 teams, and the league) who has the ability to negotiate and, ultimately, to make decisions without calling anyone else. If the folks with the juice aren’t in the room, then no progress can be made. And any party that fails to comply with this critical aspect of Judge Nelson’s order should be sanctioned and/or found to be in contempt of court.