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Mediator has different, but likely critical, role in not-so-secret talks

A. Boylan

The negotiations that began nearly two weeks ago between the NFL and the NFLPA* in the absence of the lawyers nevertheless have entailed the ongoing presence of U.S. Magistrate Judge Arthur Boylan, who presided over several days of mandatory mediation in April and May.

As Albert Breer of NFL Network recently mentioned in a report regarding the existence of not-so-secret communications in the period between the not-so-secret meetings, Judge Boylan has been serving in a different capacity.

Via e-mail, Breer explained to PFT that, during the talks held in Minnesota, Judge Boylan controlled the process completely, setting up the format, dictating when sides would meet face-to-face, and telling them when they would work separately. Breer said that, during the not-so-secret talks, the format is determined by the parties, the two sides are spending much more time meeting, and Judge Boylan “is more or less just officiating and overseeing things.”

In our assessment, Judge Boylan also is performing another critical role: Communicating with the U.S. Court of Appeals for the Eighth Circuit regarding the status of the talks. Given that Judge Boylan works beneath a federal judge who operates under the umbrella of the Eighth Circuit, it makes sense for the Eighth Circuit to be keeping tabs on the process. If progress continues to be made, the Eighth Circuit can refrain indefinitely from issuing a ruling on the question of whether the lockout will be lifted. If, at some point, Judge Boylan lets the Eighth Circuit know that the process has sputtered, a ruling aimed at kick-starting the discussions could come quickly.

Either way, Judge Boylan’s presence should serve to prevent the Eighth Circuit from announcing a game-changing decision only hours, or even minutes, before the parties reach an agreement in principle.