In a little more than a month, the high-stakes litigation arising from the relocation of the Rams will go to trial in St. Louis. Starting today, the parties will convene in an effort to resolve the case.
It’s mediation time for the NFL and the various St. Louis plaintiffs who sued the league over the decision of the Rams to return to California after two decades in Missouri.
Mediation has become a popular tool in recent decades for reducing the number of items on court dockets. Most judges, who aren’t paid by the hour or by the case, now require that the parties submit to the mediation process, which is far simpler than it sounds.
In advance of the mediation, the parties agree on a third person, usually a retired judge or a lawyer with specific experience in similar cases, who presides over settlement discussions. To start the day, the mediator typically conducts an introductory sessions with the parties. Sometimes, the two sides get a chance to make their case in the presence of the opponent. Many mediators prefer not to have open swordplay at a time when the goal is to promote conciliation; after a quick meet-and-greet, the mediator often directs the parties to separate rooms for the balance of the session.
Then, the mediator literally engages in shuttle diplomacy. The mediator typically meets first with the plaintiffs and their lawyers. After talking through the issues, usually with some gentle nudging by the mediator as to potential weaknesses in the plaintiffs’ position, the mediator receives the initial settlement position.
The mediator then goes to the room where the defendants have been waiting. Sometimes it’s a short wait, sometimes it’s multiple hours. The mediator talks through the issues with the defendants and their lawyers. It’s the same drill. Hear them out. Let them feel like they’re getting a chance to speak their mind in a setting that sort of feels like having a day in court. The mediator again pushes back gently on any obvious weaknesses.
Then, the mediator shares the first settlement demand with the defendants. They huff and puff (usually) before countering.
Once the two sides establish the high and low of the settlement range, the next move by the plaintiffs goes a long way toward revealing whether a settlement is possible. If, for example, the plaintiffs open at $100 and the defendants offer $10, a move to $99 means a settlement likely won’t occur. A reduction to, for example, $85 gets the ball rolling toward a middle ground.
As the mediator continues to go back and forth and back and forth, the mediator often becomes more pointed when it comes to pointing out weaknesses. The mediator needs both sides to accept that the litigation process entails much uncertainty, and that the no one knows what the outcome will be.
The NFL’s mediation with St. Louis becomes complicated by Rams owner Stan Kroenke’s effort to back away from his supposed obligation to indemnify his partners as to the full amount of the settlement or judgment. It may require a third room, where Kroenke and his lawyers are separate from the rest of the league and its lawyers.
Ultimately, the mediator will have to find a way to bring everyone together, if the mediation is going to be successful. And success often depends on the skill of the mediator. It also hinges on the willingness of the various sides to resolve the case and to put it behind them. Sometimes, one or both of the parties are determined to go to trial. Sometimes, the lawyers are stubborn. Sometimes, there’s no way to work it out.
The judge simply requires that the parties try to do it. And by “parties,” a common sticking point becomes whether the persons involved on behalf of the parties possess full power to resolve the case. That becomes a problem specifically as it relates to the authority of the person participating on behalf of the defendants.
In this case, Kroenke needs to be present. The other owners need to be present. It’s not enough to be involved by phone. For mediation to work, the key participants in the case must be in the room. They have to be in position to hear directly from the mediator, directly. They need to eventually feel the annoyance of being stuck in a room as the hours tick by. They need to inevitably decide whether to get this thing worked out or not so that everyone can go home and move on.
Ben Fischer of Sports Business Journal reported last week that Kroenke’s lawyers believe the case can be settled in the range of $500 million to $750 million. If it’s ever going to happen, it makes sense to just make it happen now.