It took longer than expected — 99 days to be exact — and Opening Day had to be postponed from March 31st until April 7th, but Major League Baseball (MLB) and the Major League Baseball Players Association (MLBPA) finally reached a new collective bargaining agreement (CBA) on March 10th. Despite starting the season a week later than planned, MLB was able to assure a full 162-game schedule by adding 31 double-headers and extending the regular season to October 5th.

The CBA includes some significant changes for the 2022 season and additional changes for 2023. More specifically, MLB and MLBPA agreed to extend the designated hitter rule to the National League beginning this season and also agreed to increase the number of teams in the playoffs from ten to twelve. Next season will bring larger bases (designed to encourage more base-stealing attempts and to reduce injuries at first base), a ban on defensive shifts and the use of a pitch clock.

As you probably know by now, I turned to baseball for inspiration several years ago when I designed what I call “Baseball Mediation”™ — a unique dispute resolution process that fuses concepts from “Baseball Arbitration” and “Night Baseball Arbitration” with concepts from conventional mediation. The process guarantees same-day resolution of any dispute by incorporating an impasse-breaking mechanism that is only triggered if the parties mutually agree they have reached a final impasse.

Last year at this time, I explained the genesis of Baseball Mediation in great detail. If you missed it, you can read it here: Resolution Strategies, April 2021

Much like MLB and MLBPA reached the conclusion that baseball could benefit from certain changes, it recently became evident to me that there was a way I could improve Baseball Mediation as well. Addressing concerns expressed by plaintiff counsel, defense counsel and insurance carriers alike, I’ve now made a change to Baseball Mediation that I believe alleviates those concerns entirely.

More specifically, instead of requiring that the parties stipulate to engage in Baseball Mediation prior to mediation or at the outset of the mediation process, I now offer the parties the option of converting to Baseball Mediation at any point during the mediation or subsequent to the mediation if the parties are not able to reach a resolution during the mediation.

In other words, the parties may now decide to take advantage of the impasse-breaking mechanism built into Baseball Mediation at any time — theoretically, even while a jury is deliberating — if they would like to fully and finally resolve their dispute without having to face the uncertainty and expense that accompany a trial or binding arbitration.

Yogi Berra famously said “it ain’t over till it’s over” — the bedrock principle of Baseball Mediation. Settlement negotiations are not over until both sides agree they are unwilling to make another move. Only at that point is Baseball Mediation’s impasse-breaking mechanism triggered.

Once the impasse-breaking mechanism is triggered, the matter is automatically and immediately resolved for either defendant’s final offer, plaintiff’s final demand or the midpoint between the two. The impasse-breaking mechanism has been carefully designed to assure it is neutral in application (i.e., it’s impossible to know which side the mechanism favors until negotiations come to an end), without leaving the outcome to chance.

In 100% of the cases to date, the parties who’ve engaged in Baseball Mediation have either reached a negotiated resolution or closed the gap to less than $50,000 before agreeing they had reached a final impasse, thereby triggering the impasse-breaking mechanism. Presumably, the parties were only willing to declare a final impasse and trigger the impasse-breaking mechanism because they were willing at that point to accept any of the three possible outcomes.

Though he probably wasn’t the first to say it, Yogi also reportedly said “It’s tough to make predictions, especially about the future.” If you find that it’s tough to make predictions about the future, or your client simply prefers certainty and closure, perhaps it’s time for baseball!

If you have any questions about Baseball Mediation, please don’t hesitate to contact me.

Best regards,

Floyd J. Siegal