Ombuds in Sports Setting

Back in April 2013, after the Rutgers men's basketball news came to light, I queried whether there would be a role for conflict coaches in the sports setting. I thought so then and still do. 

Since then we've seen a number of sports conflict stories in the news ranging from Jonathan Martin in Miami to news today that a group of student athletes are filing a class action lawsuit against the NCAA for player pay.  There are also a number of different student-athlete issues facing UNC Chapel Hill in the news.

With this as a backdrop, I was pleased to see an excellent recent discussion on Ombuds in Sports hosted at the Sports Conflict Institute in Oregon. Led by Founder and Senior Practitioner Josh Gordon, SCI TV, posted an interview with John Zinsser who has worked in the ombuds field for over 20 years. 

John walks us through the ombuds concept and then overlays it upon the Jonathan Martin situation, Rutgers basketball, and beyond.  We learn that there is no "typical" ombuds because every organization and company is different, so each ombuds office is different.  Yet the concept can translate and John suggests how the NFL might implement such a program. I particularly appreciated John's focus on the value added by an organizational ombuds and how such a role could work in concert with an athletic department compliance office.  I also thought his comments about how an athletic department might want its own ombuds in addition to a university ombuds program made a lot of sense. John explained that its not unusual for different settings to have an ombuds in order to more closely serve that population.  Finally, John made the key point that there is high value in having an ombuds office for most any organization.   Here's a link to the interview - Ombuds in Sports

I continue to encourage sports organizations to think about off-the-field support for players, coaches, and the organization as a whole.  Additionally, while the ombuds concept is focused on conflict resolution, as John Zinsser notes, the role has broader organizational implications.  

Finally, while not as an ombuds, I've had the opportunity to recently work with a local soccer academy, the Capital Area Railhawks Development Academy, facilitating some team meetings. I've led some team building, leadership, and goal discussion meetings and found the players receptive to working together off the field. I anticipate that this off the field work will translate to on the field success.

Mediator Challenge - Do Something New

As we start 2014 filled with resolutions for the new year, let me encourage you to add one more!  When you get stuck - try something new.

I was on a panel on Breaking Impasse at the ABA Mediation Institute in Nashville and my message to the group was that when things get stuck, you need to change what you are doing.  Treat the concept of being "stuck" merely as feedback that whatever is going on is not working. It may not be anything that you are or are not doing.  It often is the situation itself or the participants themselves. 

For me, mediation is about helping participants make choices. What do they want to do with their dispute, conflict, claim, etc.? Do they want to resolve it and what might that be or not and proceed on to whatever process will be next. In litigated cases that I often mediate, the choice is clear to either settle now or perhaps settle later or go to hearing.

When things get stuck it's often because people are not yet clear on what they want or need to do. They think settlement and hearing at the same time. Our job as mediators is to get folks thinking in both the same ways they have in the past and inviting them to think differently. To do this you need to do different things as a mediator. 

At the ABA conference I suggested that you tell stories to get folks thinking. Stories both take your mind off your own problem and give you a frame for consideration. I like the one about the boy walking along the beach throwing starfish back into the ocean - its on the front page of my website - www.roybaroff.com.  There are many others.

So, try a story next time. Get out your Easy Button or magic mediator wand!  Don't rehash old topics, use the stuckness as both a reason and your license to be creative, to tell that joke you just heard, to take a walk outside, to get some lunch, to . . .

The list goes on and on.  In 2014, try something new!

Rutgers Basketball - It's Time for Sports Conflict Coaches To Get Busy !

I’m a conflict resolution professional. I’m a lawyer with 30 plus years as a mediator. I teach mediation to graduate students and have trained Appellate judges. I have ombuds training. I’ve worked with sports teams around conflict styles and helped facilitate team meetings to address issues. I’m also a former 4-year collegiate soccer player and big sports fan, and, with this background, let me comment on the Rutgers basketball team situation.

I was on the road yesterday listening to Mike & Mike on ESPN radio discuss the events around Mike Rice, Rutgers Men’s Basketball coach. By now most of us have seen the video, or watched the ESPN Outside the Lines program, or read about the coach’s treatment of the players, or shared some water cooler/coffee table talk. The discussion between Mike & Mike focused both on the specific actions of Rice, on the decision by Rutgers Athletic Director Pernetti to suspend, fine, and order anger management training last fall, and on the perspective of the players (this was before news of Rice’s firing). Mike Greenberg (Greeny) wondered why no player had come forward before and Mike Golic commented that the players are afraid to do so.  Further comments, and I summarize, noted that the players have no power. There is a culture that what the coaches do and say goes and there is no room for “fighting” back.  There is no way to share concerns without putting your role as a player at risk.  Greeny commented that he would step forward and Golic noted that many people, many employees would not bring up an issue for fear of repercussions. 

Golic is right. The most common form of conflict resolution is avoidance.  And in large part, people avoid because they fear. Fear for their job, fear that coming forward will hinder their career, or in the case of an athlete, fear that their career will be ruined. As I listened I also heard no solution offered. So, what can be done?  There is an answer – use conflict resolution skills to create non-traditional lines of communication. This is the need that is articulated by the Rutgers situation. By Penn State. By UNC-CH.

There is no built in avenue or mechanism for student athletes or, for that matter, staff, to come forward with concerns in a private and confidential manner.  There is only fear of repercussion. There is a need for a sports conflict professional, a conflict coach. This might be someone with a sports background and understanding of the issues as a player and/or coach coupled with conflict resolution skills. Perhaps this person might be a mediator or ombuds; however, having the skills is not enough. To be effective, establishing a line of confidential communication is imperative.

For example, an organizational ombuds is a conflict resolution professional connected to a business, university, or other organization with the mission to help resolve conflicts. To be effective, an ombuds must have independence within the institution (must have a direct report to the organizational leadership), must maintain strict levels of confidentiality, must be neutral and impartial, and must be informal.  You can also think of an ombuds as a conflict coach – able to help an individual think through their choices when in conflict. These are the core values and focus of an ombuds that helps establish lines of communication where no lines may exist.

This is the case with today’s student athletes and athletic staff.  First, they fear that making any type of report will directly impact their place on the team, their relationship with teammates and coaches, and their entire future in the sport. They can’t go to assistant coaches or members of the athletic department as any reports to these individuals are not confidential. Second, athletes see themselves as the solutions to problems. Give me the ball. Let me take the shot. I can lead my team. Thus, bringing concerns to the front is not part of a sports culture.  And, most importantly, there is no institution in place to support and protect the coming forward of concerns.  Enter the conflict resolution professional – the conflict coach. Such a role should not be a “direct” reporting contact – it should be informal. Yet the information provided can be directed to the highest levels of authority in an organization while maintaining the confidentiality of the source.

Thus, while many institutions of higher learning have an ombuds, it’s time to bring conflict resolution skills and mechanisms directly to collegiate sports.  This would empower student athletes and staff to solve problems both on and off the field, to help maintain the integrity of a program, to help it win on the field of play, and in developing character and leadership.

It’s time for today’s institutions of higher learning to bring on the conflict coach!

Mediation Connections

I recently mediated a workers' compensation claim where the individual parties were in separate States and participated by telephone. I generally start mediation with some introductory comments about the mediation process and make sure all are introduced. Then in litigated matters I ask counsel to share their perspective on the matter.  

That's how things started - claimant's counsel spoke, I did a quick summary and then defendant's counsel spoke. Toward counsel's conclusion it was mentioned that the defendant, among other challenges, was recovering from prostrate cancer treatment. Right after this statement, Plaintiff chimed in from across the country, to offer concern for defendant's condition. Turned out that claimant was a cancer survivor and there ensued a short, yet connecting exchange directly between claimant and defendant.  Later as the mediation neared its conclusion with a settlement, counsel remarked on that early exchange. Both noted that they were not sure how it would play out, but thought it helpful for their client's to have had that direct link.

As mediator, even in litigated cases, I encourage direct participant interaction. While I look to counsel for the lead, I also ask and invite all to participate. Making connections between people, even when they've never met until mediation, can help enhance the work and decisions made. So, in your next mediation, figure out how to get everyone to talk to each other. 

Mediation Confidentiality versus Inadmissibility

Confidentiality at mediation has been a hallmark of the process since 1991 when mediation began in our North Carolina Courts.  Further, over the years both our appellate courts and the North Carolina Industrial Commission have supported the understanding that what happens at mediation is confidential as to the mediator and inadmissible in any proceeding unless there is an agreement enforcement or sanction issue.

In agreement enforcement cases the Industrial Commission and the Courts allow participants to testify about what happened at mediation; however, the mediator is only allowed to indicate that an agreement was signed in their presence at the conclusion of mediation.  No other mediator testimony is allowed.

In sanction issues, particularly if mediator sanctions are at issue, then the mediator may testify about what happened at mediation.

A recent Advisory Opinion from the North Carolina Dispute Resolution Commission 12-22 provides further clarification about the difference between "confidentiality" and "inadmissibility."  

According to the North Carolina Standards of Conduct for Mediators and most mediation program legislation and rules, the mediator is required to keep all that occurs at mediation confidential (except as noted above).  Note - this is one of the duties of the mediator - not the parties or counsel.  

Inadmissibility is different from confidentiality.  What is said and done at mediation is not admissible in a later proceeding. This does not preclude parties and their lawyers from talking about what happened at mediation.  

This is the clarification contained in NC DRC Advisory Opinion and all mediators should clarify this distinction in their opening remarks. Counsel should make it clear to their clients that what is said and done in mediation may be inadmissible, but may not be confidential.

That's My Bottom Line !

I’ve heard that statement many times in mediation and so have you.  What does it mean and how should you react? 

At a recent mediation, defense counsel in private caucus after exchanging several proposals, said that’s our bottom line and presented a final figure of $20,000.  Plaintiff’s last figure was $40,000, but I knew from talking with plaintiff that they wanted to get the case settled and would be more flexible, but that $20,000 was not going to do it.  I also thought, but did not know, that the defense would pay additional funds to get the case settled.  So, I kept working the mediation process, exploring what came next if we stopped and kept folks talking.  About 45 minutes later, the case settled for $27,500.  

Thus, my approach is to accept the “bottom line” statement as a beginning point rather than the end. I’ve come to this conclusion after hearing the phrase and then, as noted above, folks are willing to pay more or accept less to settle the case.  Thus, as many statements in a mediated negotiation, the mediator must take all with an open mind. 

My point to you as mediator is to keep exploring options even when people make this statement.  If you are the advocate, rethink your use of this statement because if you say “bottom line” and don’t really mean it, but the mediator believes you, then you are done and the mediation will stop.  Find another way to firmly state your proposal without closing the door to further discussion.  Of course, there does come a time when you are done – when you’ve made your best proposal – and that’s fine.  I usually find this point after exploring a proposal three times and being told no.  That means folks are truly at their bottom line.

I once heard a mediator describe “bottom line” as a line in the sand of a desert.  It’s there and it’s real and then a wind can come up and blow it away.

Negotiaion / Mediation Bracketing

I’ve been thinking about brackets since March Madness and I thought that with the tournament complete, then that would be that.  However, brackets keep coming up in mediation after mediation.  It’s a tool that I sometimes use and I’m finding mediation participants know about them too and suggest them as well. I mediate litigated cases including workers’ compensation and personal injury claims.  We have mandatory mediation in North Carolina that requires certain people attend; however, no negotiation or settlement offers/counter offers are required.  The idea is to get the decision makers together with a mediator and then to allow free choice about how to proceed.  Now back to brackets.

Let me explain bracketing in negotiation/mediation in context. It’s a tool that I’ll use when things seem to be getting bogged down, when we are in what I call the negotiation phase of mediation, i.e., actively making proposals and counter proposals to resolve a dispute, and the progress is slowing or participants are making very small incremental steps.  This slow down usually occurs when folks have very different public evaluations of a dispute which usually translate into the numbers that are discussed.  And when folks perceive a large distance in the numbers, they often get hesitant about making significant moves.  Here’s a recent example from a personal injury claim.  Plaintiff made an initial demand of 155,000, defense responded with 20,000, then a counter at 150,000 and 24,000, then 147,500 and 25,000 - things were not going very far nor very fast.  People were getting frustrated at the pace.

At this point I asked Plaintiff (counsel and client) if they wanted to use a bracket to reframe the negotiation.  The idea is to create new numbers to recharge the negotiation.  Here’s how it worked in this case.  Plaintiff officially countered with 146,500 and said they would move to 125,000 if Defense moved to 42,000 and then it would be back to Plaintiff.  This was rejected by Defendant; however, she proposed a revised bracket.  100,000 - 30,000. This was countered by Plaintiff - 125,000 - 30,000.  Defendant rejected and proposed 90,000 - 35,000.  Note that during these exchanges participants are continuing to evaluate their claim and are in active discussions with the mediator (me) about aspects of their claim, what their future choices might be, what are the risks and opportunities of not settling the claim versus settling.

As a result, Plaintiff accepted the 90,000 - 35,000 bracket proposed by Defendant.  Then we started moving.  Defendant offered 40,000, Plaintiff 85,000, then Defendant 45,000, then Plaintiff 80,000, then defendant 50,000, then plaintiff 75,000.  With the bracketing and ensuing discussions the participants shifted from 146,500 - 25,000, to 75,000 - 50,000.  Things slowed again as both participants wanted to continue negotiating (the spread from 75,000 - 50,000 was likely in the settlement zone), but also didn’t want to over extend themselves.  It took additional work from all and the claim eventually settled for 62,000. 

The bracketing discussion allows participants to share information about what they would do if a different offer was in front of them.  Since information is a large part of the currency of negotiations, any such discussions help move matters forward.  And when things are slowing down or getting stuck, using a bracket to reframe the negotiation can often smooth the way.

Let me know about your brackets - did you pick Connecticut?