Mediation might not save MLS collective bargaining talks

ESPN reported on Thursday that, "with negotiations over a new collective bargaining agreement seemingly at an impasse, MLS owners and the MLS Players Union have employed the Federal Mediation and Conciliation Service to help reach an agreement."

Some may wonder what this step means, and whether it is a good sign towards avoiding a work stoppage. As you'll see, it could be a sign that the parties are eager to work something out.

Or it could simply be the calm before the storm.

What is FMCS?

The Federal Mediation and Conciliation Service ("FMCS") is a federal agency, created in 1947 as part of the Taft-Hartley amendments to the National Labor Relations Act. Its primary function is to help mediate labor disputes across the country. Stated another way, they are government provided "closers," pushing the parties to agreement in lieu of a strike or lockout.

While some reports indicate that MLS and the MLSPU have "hired" a mediator, this is not actually the case. Rather, upon request, the government (through FMCS) provides the mediator. These mediators are government employees, earning a salary. Thus, they are not beholden to either side.

What kind of authority does the mediator have?

While the role of the mediator is to act as a "closer," he or she has no authority to force the parties to agree to anything. In this connection, a mediator is much different from an arbitrator. An arbitrator is basically a judge-for-hire, paid for by the parties, who has the authority to make a final and binding decision on the issues presented to him.

Parties (and employers, in particular) rarely agree to arbitrating contract terms ("interest arbitration"). In fact, one of the most hotly debated aspects of the Employee Free Choice Act of a few years ago was its provision that initial collective bargaining agreements between the parties would be subject to interest arbitration. Typically, public safety employees (i.e., police and fire) are the only employees who get interest arbitration - and only because their services are too essential to society to permit them to strike.

A mediator is essentially a good listener who takes what one side tells him and then relates it to the other in an attempt to achieve common ground. The good news for soccer fans is mediators tend to be very good at their jobs. However, as noted, they have no authority to order either side to do anything.

So the arrival of a mediator is a good thing, right?

Yes... and no.

If the parties are genuinely interested in an agreement, but just need help getting over some roadblocks, the fact that they recognize the need for a mediator can be seen as a good thing. Ideally, the mediator can communicate the strengths and weaknesses of each side's bargaining position, and a consensus can be reached.

On the other hand, the arrival of the mediator might simply be nothing more than a necessary step before a work stoppage.

Section 8(d) of the National Labor Relations Act requires the parties to undertake certain acts before going on strike or calling for a lockout. For instance, one side must give notice to the other of an intent to modify an agreement at least sixty days prior to the expiration of that agreement. In addition, one of the parties must notify the FMCS "within 30 days after such notice of the existence of a dispute" before "resorting to strike or lockout."

While it is common practice for a moving party to notify FMCS simultaneously with the notice to the other party of an intent to renegotiate a collective bargaining agreement, it is possible that the MLSPU only contacted FMCS 30 days prior to March 6 (i.e., the start of the season), which is why a mediator is getting involved now.

In other words, the arrival of the mediator may not be a sign that the parties are close to a new agreement but, rather, just storm clouds on the horizon before a work stoppage.

Should I tear up my opening day tickets then?

No, not just yet.

As noted, FMCS mediators are very good at their jobs. My personal experience with them has been largely positive. Indeed, in 2010 FMCS Mediator George Cohen was widely hailed as instrumental in getting MLS and the MLSPU to reach agreement. Even if the MLSPU has only summoned the mediator because it has to before striking, the fact remains that the mediator is present, and is going to do everything within his power to get an agreement. Hope springs eternal.

As noted earlier, unfortunately, that power does not include forcing the parties to do anything. If the players are insisting on free agency, and the owners are just as insistent that free agency is not on the table, there is not much a mediator can do.