Blog #15 (One Litigator's Perspective on the Mediator's Compromise; Bud Selig)

By Richard J. Decker on December 14, 2011 7:00 AM


The mediator's compromise is generally a final attempt by the mediator to try and settle the case when an impasse still remains and the mediator has nothing left in his or her arsenal of tricks. What happens is that the mediator picks his or her optimal settlement number and communicates it to both sides privately. If one side accepts, they learn if the other side accepted or rejected. However, if a party rejects, they never learn whether the other side accepted or rejected. A good mediator will use the mediator's compromise as a final tool only when he or she genuinely believes it may be an effective tool to settle the case. Others, however, use it in desperation when they see the settlement prospects going south as a last ditch effort to try to make something happen that simply is not meant to happen at that time just to be able to say "I settled another case." What mediators need to know, however, is that good lawyers can always tell the difference. Even when employed by the good mediator, however, it has been my experience that the mediator's compromise generally does not effectuate a settlement. In fact, in all of the mediations in which I have been involved, and I am thinking hard, I cannot recall one where a settlement resulted from a mediator's compromise. So,to put it in baseball terminology, I am not a fan of the mediator's compromise.

Now for the Opening Day memory.

bud_selig 1.jpgSince I went with a manager last week, I am going to stray even further this week and go with the former car salesman and owner of the Milwaukee Brewers and the current Commissioner of Major League Baseball--yes, this week's memories come from none other than Commissioner Bud Selig, who I was lucky enough to interview by phone from my office. I was quite honored that he took time to talk to me; it was a real thrill. Although I don't always agree with Mr. Selig's decisions (I attended the All-Star Game tie in his home city of Milwaukee in 2002 which could and should have been decided by a Home Run Derby), I do believe that he believes that he always acts in the best interests of baseball, which is what his job is. It seems most if not all of the owners do as well, because he has held his job since 1992. (He plans to retire at the end of the 2012 season.) I got to hear him speak live at a USC event some years ago, and I have to say that he is a compelling speaker with a very commanding presence. I wish him well in fixing the mess in the Dodgers organization, which it seems like he is on the road to accomplishing. I know many Met fans who hope that he focuses on that organization next. I would love to share some of my ideas to better the game with Bud, but that probably is not in the cards as I already was lucky enough to speak to him once. Therefore I have to be content merely to relay his two most memorable Opening Day experiences. So from Commissioner Bud Selig, who Official Major League Baseball historian Jerome Holtzman (who I also interviewed before he passed away in 2008) believed to be the best Commissioner in the history of baseball, here they are.

"Two stand out in my mind. In April of 1953, the then Boston Braves relocated to Milwaukee. Opening Day was the first major league baseball game ever played in Milwaukee. Warren Spahn pitched for the Braves and Jerry Staley for St. Louis. The Braves won 3-2 in the tenth inning on a Billy Bruton home run. It truly was an Opening Day - it was the first time a major league team had relocated, so it was very historic.

"The other one was with the Brewers in April of 1980. The Brewers were playing the Red Sox - the two teams had established quite a rivalry at the time. It was a great game - it went back and forth, and it was tied 5-5 in the bottom half of the ninth inning. Sixto Lezcano, the Brewer right fielder, hit a grand slam home run off Dick Drago, I believe, to win the ballgame, 9-5. I'll never forget the home run."

Back to the players in the next post. Happy Holidays. Richie

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