MEDIATION ISN’T JUST FOR MINOR DISPUTES

Some assume mediation is only suited for disputes such as child custody, small claims, and neighbor-to-neighbor disagreements. In fact, mediation is commonly used in most major disputes when the parties are ready to settle.

One example is the NFL player concussion case: Chronic traumatic encephalopathy is a degenerative brain disease found in athletes and others who experienced repetitive concussions. In 2011, seven players filed a federal lawsuit against the NFL. By 2013, more than 4,500 former players had filed lawsuits all contending they had experienced repeated concussions throughout their careers. Attorneys for the players alleged the NFL was aware of the risks and deliberately concealed them from players. The NFL responded that it had issued warnings based on available medical knowledge at the time. The NFL also contended that player safety is governed by collective bargaining agreements between the league and the players.

The federal judge overseeing the cases ordered attorneys for the players and the NFL to meet with Layn Phillips, a retired federal judge, as the mediator in the case, who spent two months going back and forth between the parties.

Many of the players were dealing with health concerns and might have preferred a settlement over years of litigation with no guarantee of the outcome. While the NFL may have felt less financial pressure, it may have wanted to avoid the discovery process, which could have revealed information damaging to the league’s reputation.

A settlement was reached. The NFL agreed to contribute $765 million for medical help to more than 18,000 former players and contribute an additional $10 million to fund brain injury research and safety and education programs.

The mediation process worked in this case and can easily be applied to similar ones as well. However, parties typically move to mediation only after having begun the process of litigation.

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Fred Jandt is the author of HOW TO SURVIVE A MEDIATION, available wherever books are sold.