Mediation, Yes. Press Blackout, No

Although the Federal Mediation and Conciliation Services (FMCS) is now playing an official role in helping both sides in the Atlanta Symphony Orchestra (ASO)/Woodruff Arts Center (WAC) and Atlanta Symphony Orchestra Players Association (ASOPA) labor dispute, it doesn’t appear that it carries any sort of media blackout restrictions. In fact, both sides continued lobbing PR shells at one another since the mediation announcement was released.

Observers have been quick to point out that the FCMS mediator working on this case is Acting Director Allison Beck, the same mediator who helped The Metropolitan Opera avoid a lockout but one key difference missing, so far, worth pointing out is the unusual variable of an independent financial examiner.

In the Met dispute, a mutually agreed upon independent examination of the organization’s financial records was performed by Eugene Keilin, a co-founder of KPS Capital Partners, LP who was formerly a General Partner of Lazard Freres & Co. and Chairman of the Municipal Assistance Corporation for the City of New York. His participation was the byproduct of a very detailed financial analysis presented by the musicians highlighting substantial cost savings via changes to production and marketing processes.

His examination produced a confidential report that undoubtedly had a great deal of influence on reaching an outcome, one that saw the employer emerge from well entrenched zero-sum bargaining positions, not unlike those adopted by the ASO/WAC.

Even more interesting is the agreement produced a clause that retained Keilin’s services as an independent financial examiner throughout the term of the new agreement.

This item becomes increasingly salient as one of the ASOPA’s key talking points has been that the WACs financial woes are due mostly to underperforming financial governance than limited revenue opportunities. However, compared to what the musicians’ union prepared via The Met dispute, what’s missing from the ASOPA’s talking points is a detailed analysis of those governance shortfalls. For now, the musicians have been content to paint their PR points with the same broad strokes used by WAC spokespersons.

And speaking of those broad strokes, WAC president and CEO Virginia Hepner issued a statement over the weekend accusing the musicians of refusing to acknowledge financial limitation and actively resisting her requests for constructive dialog to find solutions that will close the income/expense gap.

The protracted financial challenges at the Atlanta Symphony Orchestra are very serious and threaten the health of the entire Woodruff Arts Center…The ASO has had 12 years of accumulated deficits, a severe reduction in its endowment and an annual operating gap that we cannot afford to continue. Over the last eight months, our team has proposed many potential scenarios to the musicians in an attempt to find a solution to the problem. We continue to ask the musicians for constructive ideas to help us address these challenges and we are frustrated that they have turned a deaf ear to the situation.

It’s worth noting that the “many potential scenarios” Hepner referenced are limited to terms falling within the intractable confines of the zero-sum bargaining position outlined by WAC Governing Board Chairman Douglas Hertz. Consequently, it should come as no real surprise that musicians would find a bargaining strategy of choosing where to cut the pound of flesh just so long as it’s a full pound less than satisfying when they believe the problem is better solved via integrative bargaining solutions which is a flexible approach designed to identify more of a win-win scenario environment.

Moreover, ASOPA fired back in a statement from 10/6/14 alleging that Hepner is ignoring and/or belittlingly what they defined “as many other constructive ideas the musicians have volunteered, in addition to maintaining stunningly high artistic standards and exemplary professionalism” since they accepted major concessions in 2012. Details regarding those proposed ideas were not included in the ASOPA statement.

For now, it will be interesting to see if both sides can agree to either turn down the rhetoric or even agree to a limited press blackout although without some sort of incentive to offset the pressure resulting from being locked out, it would be surprising to see the musicians agree to lose this advantage.