What did you do when you hit a brick wall in your effort to bridge differences between the parties?


Angel Alderete


 [Full Interview] [Topic Top]

At one point, we used the old trick: "Alright, you don't want to come to an agreement? We'll see you guys." So we walked out and closed the door. Then, as we were getting ready to go tell the warden that we didn't get anywhere today, one of the sergeants come out and said, "Hey, they want to talk to you."



Bob Ensley


 [Full Interview] [Topic Top]

What did you do when you came to an impasse -- when you couldn't get the parties to come to an agreement in North Carolina?

Answer:
Well, in North Carolina, I would say to the head of the Black Panthers, "I've fooled with you long enough. If I leave you, some of these rednecks would need to get in there and start beating heads. You can't win so you need to fall in line." I said, "We're all here for the same thing, but you cannot get out of here and then start criticizing us as being a bunch of Uncle Toms and white men and n****rs and all of these kinds of derogatory terms because we're all the protection you have."




Edward Howden


 [Full Interview] [Topic Top]

Question:
Were there any other instances that you can think of that you reached impasse?

Answer:
I remember one big and complex case that did not go to conclusion, but it didn't result in a blowup. This case had to do with long standing fire department hassles. With much effort over weeks and weeks and weeks, we had gotten the case into a mediation with all the parties, kind of a multi-party thing. This one involved representatives of the fire commission, chief-officers association, the middle and upper lever supervisors of the fire department, the black fire fighters association and the fireman's union, which was predominately white. Many of the black firefighters didn't want to belong to the firemen's union, although they were technically members, because they had no confidence in the union. There had been heavy enmity and some of them had dropped out of the union. They were one party; Hispanics and Asians did not have an organization, but we had one representative from each of those groups. The case went through some early and very difficult stages. We finally got it going and in two or three fairly lengthy sessions got through the first and easiest of the agenda points. The second one was the next easiest, or the next more difficult. We were obviously working toward those which were going to be really rough. Somewhere along in that process the black firefighters team said that they really didn't have any confidence in what the ultimate result would be and they decided to break off. My colleague and I asked for a caucus with them. We had worked with them at great length in advance of the mediation to help them get their act together, and so we asked for a caucus with them so we could try to get them back on board. But we couldn't succeed in persuading them to continue, so the process ended. There had been earlier court decrees, and there had been unhappiness with the outcomes, and there was plenty of potential for court action that could happen--and which in succeeding years did happen. This was a number of years ago, and the situation as of today is a much happier one in terms of those issues than it was at that time. I don't think there was a lack of trust in the mediators, but I think there was simply no confidence that the city establishment would listen or would agree to do something that resulted from mediation.




Bob Hughes


 [Full Interview] [Topic Top]

A lot of times, I can have a sense of what mediation is going to take place, what the answer is going to be, but this was one I could not see how on earth we were going to come out of this. I was trying to be positive and upbeat, but I was personally beside myself. By the end of these evenings, I would feel so discouraged. "I don't know what we can do that would be agreeable to both sides." Finally, somebody hit on an idea. It may have been the superintendent. "Let's hold community hearings in each of these feeder school communities. There were about four feeder schools. Let's hold hearings with the parents of each of these and let the parents that are directly involved have their input by voting on pieces of paper and by statements at the microphone reading the pros and cons of the reinstatement of the school. All the participants in the mediation will be in attendance at all four of these." Of course I said, "Who's going to convene these meetings? The school administration for that school? The PTA president? Who?" They said, "You are." So I had to arrange all this. All the publicity and promotion of these meetings. Anyway, we held these. A lot of feeling was vented in these meetings, but we got the data.



Efrain Martinez


 [Full Interview] [Topic Top]

When there was an impasse, it was usually a matter of clarifying the position or whatever, or considering another option. Rather than spend the taxpayers money sending the people from Washington everywhere, just do a conference call. Plus they faxed all the information to each other prior to the conference call. It was much more efficient that way and you still get the job done. You gotta do what you gotta do, and at the time it was the best thing to do.



Nancy Ferrell


 [Full Interview] [Topic Top]

Answer:
Another factor is the partyís or the individual's ability to look beyond their current power position. If they can't perceive themselves in an honorable way, beyond this entrenched position, then the issue's not negotiable. That's why I always ask, "What is in your interest?" If I can't help them identify an interest that serves their needs beyond this entrenched position, it won't work. I can explain to them, "You have the power to direct authoritarian decision making on this plan, but what is it getting you? What might happen if you're willing to move in a different direction? Is it worth that?" If they say it's not worth that, then I'll tell these people what to do. If they don't do that, they're out of here, they're not going to negotiate. Again, at that point, I'm not looking for them to understand the other party's interest. I'm looking for something to catch their interest. So if they're so entrenched that they can't see hope of personal interest served -- beyond this entrenched position -- they're not going to move out of it. That's when I would say, "Call me."

Question:
You mean if they change their mind?

Answer:
Yes. I think one of my propensities was to keep moving beyond their real interest. They would have to be really overt to me and say, "Go away." As long as they just danced around it and kept the door open, I just kept moving forward. Generally that worked out, although sometimes they slammed the door. I think that's one of the skills of the mediator, to understand whether or not it's mediatable. If you canít help that party see beyond the entrenched position, then it's not going to be mediated. I use it in the 40 hour mediation class. For example, one of the barriers may be authority. It's a big rock. Here's the mediator, they're the fulcrum underneath this lever. As the mediator, I'm trying to get this party off of its entrenched position in order to see the benefits of the mediation. If I can't come up with something to put on the other side, then it won't level out and it's not going to work.

Answer:
So the mediator is looking for a leverage point to move people out of their entrenched position, to get them to consider a negotiation. In family situations, children are often the point. Sometimes it's money. "How many resources are you going to use supporting that intrenched position? Are you willing to consider another option?" So you've got to find that leverage point. If you can't find it, and I don't say many things absolutely, but that's where you would have an intractable conflict. If they had found that point already, they wouldn't be there. So, all your incredible skills have to involve helping find that leverage point. It's either going to be a common interest or a personal interest. A common interest gives you the possibility of a richer mediation. A personal interest can at least get you to the table and create some sort of contractual relationship to the conflict. If you can get them toward a common interest, that's where the payoff is. That's when I try and transform those relationships by the process. But sometimes the best you can do, because of personal interest, is to get to some contractual relationship. It's better than nothing. Abortion is another example I use. With the abortion issue, there is no common leverage for either side to move off that intrenched position. You're wasting your time. The best you can do is work with the majority of people who are in the middle and try to bring reason to the extremes. That's what has happened in these big international affairs, like Kosovo. They don't have a middle. In Ireland, there's become this middle group who says these intrenched positions are killing us. That's where you need to start focusing your energy, is in that middle group, in helping and nurturing and supporting. Then the light's on, and these two intrenched positions are no longer acceptable and the community often has to move on beyond them. They'll still be agitating back here, but the group as a whole has been able to create some life to move forward.




Silke Hansen


 [Full Interview] [Topic Top]

Question:
What do you do when you get the parties to the table and they reach an impasse, and just can't go forward?

Answer:
I can think of only one case where we actually got to mediation and that happened. It was a court-requested or court-ordered mediation. And it was after days of work. I did what I usually do: I usually start with what I would call shuttle diplomacy I hedge my bets. I like to know what the parties are going to say when they come to the table before they come to the table. So I do a lot of work with the parties individually before I actually bring them to the table. In this case, they were in the same building, but in separate rooms. It became very, very clear that we were not going to get anywhere. So I ended up just telling the court, "Your honor, I'm sorry, I tried, but it's not going to happen here," without saying whose fault it was. You know, I had my own perception, and I thought, quite frankly, that one of the parties was probably foolish, because they could have gotten some gains and they ultimately lost. I think they could have negotiated some gains out of this. So in that case, I didn't have a clue of how to get past the impasse. But that's the only one I can think of where parties agreed to mediate, but where they didn't reach at least some agreement. There was another one that wasn't court-ordered, but which had been in court, and it included some hiring and affirmative action-type provisions. The parties reached agreement on most of the pieces, but not all of them. In this case, I think that part of the reason they couldn't agree on all of it was that one of the parties was given false expectations by their attorney. The way we left it in the agreement was that we stated the areas in which they agreed, and the rest went back to the court and the judge would issue a ruling. In each case, what the judge ruled was what the other party had offered in the first place. So, unfortunately for the other party the minority party in this case they really didn't get anything more than they might have gotten if they had continued to mediate and reach a settlement that way. One of the things that I always do at the beginning of a mediation session, is get the parties to agree on what to do if there is partial but not full agreement. If there are ten issues, for example, and they can only reach agreement on seven, does that mean they go ahead and sign an agreement on those seven, and leave the other three hanging? Or, if we don't reach agreement on everything, then do we throw it all out and say that there's no agreement, period? I think you want to get that understanding before they start. It's much better than getting half-way through the mediation, only to have one party suddenly say, "I'm sorry, if we don't get such-and-such, then all bets are off." So getting an assurance from both parties that partial agreements are acceptable is one of the ways of avoiding a major disaster. Sometimes, just pointing out how much agreement they've already reached then becomes an incentive for continuing the discussions. I can think of another case in which there was huge mistrust and even hostility between the parties. Some of the issues were complicated enough that it would require, or certainly benefit from, some outside expertise. So in that case, what we did was have each of the parties recommend a consultant who could provide expertise, and then we picked a third person within that field of expertise. So we had those three consultants or experts meet, and come up with some proposed approaches to dealing with the issues in contention. They did that successfully, and then they were able to sell those ideas to the parties, because they had credibility. So that enabled us to get them to agree to some approaches, and that would have been very difficult had we brought in only one consultant. If we'd had only one "expert," both parties would have said, "Is that consultant on their side, or is she on our side?" So having a panel of three worked very well in that particular instance. It was expensive for CRS, because CRS doesn't have those kinds of resources. But we did it in that particular case, and they did ultimately reach an agreement. So that's another approach to get past an impasse.




Silke Hansen


 [Full Interview] [Topic Top]

Question:
What do you do when you get the parties to the table and they reach an impasse, and just can't go forward?

Answer:
I can think of only one case where we actually got to mediation and that happened. It was a court-requested or court-ordered mediation. And it was after days of work. I did what I usually do: I usually start with what I would call shuttle diplomacy I hedge my bets. I like to know what the parties are going to say when they come to the table before they come to the table. So I do a lot of work with the parties individually before I actually bring them to the table. In this case, they were in the same building, but in separate rooms. It became very, very clear that we were not going to get anywhere. So I ended up just telling the court, "Your honor, I'm sorry, I tried, but it's not going to happen here," without saying whose fault it was. You know, I had my own perception, and I thought, quite frankly, that one of the parties was probably foolish, because they could have gotten some gains and they ultimately lost. I think they could have negotiated some gains out of this. So in that case, I didn't have a clue of how to get past the impasse. But that's the only one I can think of where parties agreed to mediate, but where they didn't reach at least some agreement. There was another one that wasn't court-ordered, but which had been in court, and it included some hiring and affirmative action-type provisions. The parties reached agreement on most of the pieces, but not all of them. In this case, I think that part of the reason they couldn't agree on all of it was that one of the parties was given false expectations by their attorney. The way we left it in the agreement was that we stated the areas in which they agreed, and the rest went back to the court and the judge would issue a ruling. In each case, what the judge ruled was what the other party had offered in the first place. So, unfortunately for the other party the minority party in this case they really didn't get anything more than they might have gotten if they had continued to mediate and reach a settlement that way. One of the things that I always do at the beginning of a mediation session, is get the parties to agree on what to do if there is partial but not full agreement. If there are ten issues, for example, and they can only reach agreement on seven, does that mean they go ahead and sign an agreement on those seven, and leave the other three hanging? Or, if we don't reach agreement on everything, then do we throw it all out and say that there's no agreement, period? I think you want to get that understanding before they start. It's much better than getting half-way through the mediation, only to have one party suddenly say, "I'm sorry, if we don't get such-and-such, then all bets are off." So getting an assurance from both parties that partial agreements are acceptable is one of the ways of avoiding a major disaster. Sometimes, just pointing out how much agreement they've already reached then becomes an incentive for continuing the discussions. I can think of another case in which there was huge mistrust and even hostility between the parties. Some of the issues were complicated enough that it would require, or certainly benefit from, some outside expertise. So in that case, what we did was have each of the parties recommend a consultant who could provide expertise, and then we picked a third person within that field of expertise. So we had those three consultants or experts meet, and come up with some proposed approaches to dealing with the issues in contention. They did that successfully, and then they were able to sell those ideas to the parties, because they had credibility. So that enabled us to get them to agree to some approaches, and that would have been very difficult had we brought in only one consultant. If we'd had only one "expert," both parties would have said, "Is that consultant on their side, or is she on our side?" So having a panel of three worked very well in that particular instance. It was expensive for CRS, because CRS doesn't have those kinds of resources. But we did it in that particular case, and they did ultimately reach an agreement. So that's another approach to get past an impasse.

Question:
And those three consultants met by themselves?

Answer:
Initially. And then they served as resources to the mediation process, until the overall plan or outline was agreed to. And then when it came to finalizing you know, crossing the "t"s and dotting the "i"s that we did ourselves, just myself and the parties. Oh, I remember another case with an impasse. Here the parties had reached agreement on all the important stuff. We were working on finalizing the wording, and we got to the point of saying, "Each community and each ethnic group has a right to be represented and have its culture represented in the curriculum and other processes at the school." But that didn't work, because everyone wanted to have his or her own culture mentioned, but no one could decide what each group would be called. For illustration, let's say the conflict involved and Asian group. So do we say, "All Asians?" "No, no, it can't be Asians, it has to be Vietnamese specifically." But someone else said, "No, not Vietnamese, but Southeast Asian." And others just wanted "Asians." So just the wording almost blew the entire mediation. We finally got around that impasse with some wording that I came up with: "All children whether they call themselves Vietnamese or Asian or Southeast Asian or whatever, have the right to have their culture and history reflected." So that way, it wasn't the parties labeling the children, it was the parties acknowledging that the children would label themselves in whatever way they wanted to. We came to this idea at about 9:30 at night, and the attorneys were like, "What is this?!" But the parties were absolutely adamant. They would not agree on anything else. So it's amazing what can sometimes sort of throw that monkey-wrench in there.






Bob Ensley


 [Full Interview] [Topic Top]

So to end an impasse, to bridge the differences, you used persuasion and force?

Answer:
Persuasion, with some knowledge of the history of their movement, or history of their organization, and some of the people they know from their respective home towns and previous involvement with different groups and organizations. Also I tried to determine what their personal objectives were, what they were in it for.

Question:
And once you know their personal objectives, how would that help you?

Answer:
It would help me to just go up and speak on their behalf. Then I say, "Well Dick, I have a commitment from John and his group and they are committed to do such-and-such, and without their assistance we cannot do it alone. Could you give them this?" It worked at times.

Question:
What other techniques would you recommend to newcomers?

Answer:
Whatever little success you have, don't take personal credit. Give it to someone else. Don't take any credit, because every time you start taking all of the credit, you are darn sure going to get all of the blame. So I would always try to get the message out that without Larry, this could not have happened, or without the investors it could not have happened. Little things like that. And just as soon as you get back to the hotel, pick up the phone and call him and say, "Larry, thank you because it couldn't have happened without you." Just little positive things. Better yet, if you can visit, don't ever use a phone if you can visit. Just drop in on somebody and say, "Larry thank you, you made it so much easier for me, and I am going to be counting on you for support from now on."




Julian Klugman


 [Full Interview] [Topic Top]

Question:
How did you deal with other impasses? When there was a stalemate and no one would move?

Answer:
You have to know when to let it go. In mediation cases, though, I would say that you're more than halfway to success once you get them to sit down. We had very few incidents where mediation broke off once we started it. I would say five percent at the most, because parties are committed. The current situation in mediation is disturbing. Mediators are making money. They're selling mediation, so they want to mediate and they want to come to a conclusion. Who are all these facilitators? They're not people like me who have learned through experience. To get groups to talk, you encourage the people who are quiet and you really move forward without telling people what to do. Their facilitators are people who write real fast on paper and they reach a false consensus. You even have techniques and games that force you to reach a consensus. As if conflict is wrong. What's wrong with conflict? I don't mean you let people hit each other and beat each other up and scream and yell, but conflict is how change takes place, particularly if you don't happen to be the establishment.




Werner Petterson


 [Full Interview] [Topic Top]

Question:
So they felt that they were at an impasse?

Answer:
Oh, oh yeah.

Question:
Can you describe in this situation how the impasse looked? How did they know that they were at impasse, and how did you know that they were at impasse?

Answer:
Well, when we got into talking about how you were going to change the student population in the school, both sides had their positions about that. I think a lot of it revolved around bussing, and on the part of the plaintiffs that was their solution. The school district was responding negatively to that idea. We just kept rehashing all these old solutions and it became clear that their positions weren't going to get them out of the impasse. At this point there was this idea that had floated around the community and had been proposed by a community organization so one day in a meeting I said, "Well what about this idea?" They said they wanted to talk about it, so both sides and myself just started looking into how this would work, and by the next time we came together they had, on their own, come to see that this would probably be a possibility. So, we set aside all these old positions and started looking and seeing how this would work.




Dick Salem


 [Full Interview] [Topic Top]

The legal assistance attorneys were not participating in mediation at this point, but when we opened the next session that afternoon, one the attorneys and a student stormed into the room and announced that they were not going to represent the inmates any more if they were going to be harassed by the staff. "This is an issue which I want resolved here and now or we arenít coming back to this institutionĒ he said. You can image the response of the inmates. They then caucused with the legal team behind a locked door for 45 minutes. They hadnít been there for three weeks and all of a sudden they came in and made this announcement and caucused across the hall. Eventually they came back and the issue was resolved. I donít remember the details, but there were assurances given and then they disappeared again.

Question:
What were you doing while this was going on?

Answer:
I was cooling my heels. What can you do when the group caucuses and they donít want you there? Usually, you wait awhile and give them some time and stick your head in to see if you can be a positive factor. But they wouldnít let me in. Oh, they were furious. That ended and we got through that.






Leo Cardenas


 [Full Interview] [Topic Top]

Did the negotiation ever reach an impasse?

Answer:
It did at the very end when the officials from McGraw Hill at the national level came to Denver, and either did not realize or thought that they could just simply come to town and leave town without any commitment. And so there was a question, certainly in my mind, and in the minds of both Wilbur Reed and Manny Salinas as to whether we actually had an agreement or not. We thought we did, and McGraw Hill came back with signed documents.

Question:
What did you do to hold it together?

Answer:
At that time, we waited, and then eventually, I got on the telephone and talked to their contact and eventually to an attorney. And the attorney asked a lot of questions that we were able to work out. And by that time, incidentally, the minority community group also had attorneys who, if my memory serves me correctly, worked with the NAACP and through MALDEF.




Efrain Martinez


 [Full Interview] [Topic Top]

How do you deal with impasses? What happens when you've got one party here saying, "I won't take less than this," and the other party saying, "I won't give more than this," and they're not coming together?

Answer:
I was doing a court mediation case against a federal agency. I'm part of that agency, Department of Justice. It was over an action INS took in a community in apprehending day laborers, and that town's police force helped INS in conducting this action. The plaintiffs felt there were a lot of civil rights violations, such as the fourteenth amendment, first amendment, seizures laws, and all that stuff. They filed a suit in court against the Attorney General, against the Department of Justice, against that city, and against the city's police department. So the plaintiffs asked me if I would mediate it after it had gone to federal court. They all got together, and even though I work with the Department of Justice, they were asking me to mediate. I had worked with a lot of the plaintiffs before. They felt I would be fair and impartial. It's the same idea with being Hispanic, dealing with issues involving Hispanics. I'll never stop being who I am, but I will try to be as fair and as impartial as I can. To be able to help them. When I'm in town they say, "Well are you going to talk to the sheriff?" I say, "Of course." "Are you going to help him?" I say, "Of course. I've got to help the sheriff deal with you, and then help you deal with the sheriff. If I can't do that, then I don't have any business here." In this court case, once we got the judge's okay for mediation, we had a second meeting where some new lawyers came from Washington. The plaintiffs were asking for class designation and for thousands of dollars to pay for their attorneys. The government said, "No, there's not going to be a class designation and we're not going to give you money." They were asking right off the bat for about $600,000. Then said I asked the government, "If you give them $100,000, is that reasonable?" "No." "$50,000?" "No." "$25,000?" "No." "$5?" "No." "Five pennies?" "No." Nothing, zero, no pennies, nothing." So the plaintiff's attorney was there, and he said, "Okay, you're not going to give us class, you're not going to give us a penny, then we're out of here." So they just walked out. I called for a recess and a caucus. I talked to both sides about how important this was. The government wasn't going to give up any money, but what would be reasonable? What would their supervisor and the taxpayers feel was comfortable? But it became a personal matter to them about giving up anything. So now they're playing hardball. Then I talked to the plaintiffs and their party privately about their ultimate goal. Is their ultimate goal getting class and getting money, or is their ultimate goal reaching settlement on correcting the problem they say happened? What are you here for? Are you here to make money, are you here to declare that this is a class action, or are you here to get what you can get for the people you represent? I also said, "Okay, if it's critical to you, think about how much money you want. Also, why don't we put that at the back end of the discussions?" So it becomes issue number twenty instead of issue number one. That way, you all feel you've accomplished a lot if you've accomplished eighteen of the things on your list. Of all the things you really wanted, corrective action on the police department was very important, corrective action by the government. If you get that, then maybe money won't mean as much. Now you've gotten pretty much all that you wanted. And that's how we did it. It involves helping them realize what their true self-interest is. I just helped them through the process of analyzing their interests. The plaintiffs didn't get half a million dollars. That's what they felt they had spent in legal fees. As for the class, they were just defined as one. But everybody got a whole lot of what they came there for. They went to the judge and the judge gave the okay a few months later.




Efrain Martinez


 [Full Interview] [Topic Top]

There was an impasse for some four or five months before the Hispanic group called me, and I called the management and I got discussions going again. I was managing the process, came up with proposals, and there were objectives to that. We amended the proposals and there were objectives to that. We would meet together, and we would meet separately, but finally they came up with an agreement. The Hispanic position was that the whole rodeo culture contained a lot of Hispanic culture. Even the word rodeo is Spanish. All the terminology used in the rodeo are Spanish terms. Hispanics introduced the idea because Spain brought horses to America back in ancient times, so they developed the culture then adapted it to Western culture and Texas culture. And that's how the rodeo evolved, but they claimed they were being left out as an identifiable group. In their discussions and negotiations they struck a deal. They later changed their name to fit the rodeo structure's naming, so they're the Go Tejano committee but they do scholarships targeting Hispanics, and they could also educate everybody and change their criteria for applications and then advertise that. A million dollars is now being given out because there are a specific number of Hispanics. Also, they created a Tejano Day for the rodeo. They set rodeo records of attendance every year for that particular day, and they got to 60,000 this last year. Now they've added a carnival, and they're into the hundred something thousand.



Efrain Martinez


 [Full Interview] [Topic Top]

How did you deal with impasses, when you reached a situation where negotiation was at a stall?

Answer:
I told you earlier when those parties almost walked out, they just couldn't agree. So there was no progress, so we just talked with them privately, privately, and discussed the whole situation over. I helped them analyze where they were, their positions, and asked them to think. That if the whole concept was to find remedies and solutions. It wasn't to make points, not to find somebody guilty, and we were confident that they could do it. We helped them explore options and possibilities, and then they saw how they could really continue and progress by looking at it slightly different. This was after a re-analysis of their positions and what was being asked. Things are very fluid and everybody has an idea of where they want to go, but there's glitches along the way, you have to work them through and help them do that.




Ozell Sutton


 [Full Interview] [Topic Top]

I'm wondering, when you encountered an impasse, let's say in Memphis, or any of the other cases you mentioned, how did you break that impasse?

Answer:
Well what you do is, you deal with realities. The realities are power.

Question:
So part of it is to provide some factual information, is that what you're saying?

Answer:
Factual information in the right setting. If I'd gone down and reported that [police harassment] to some of the chamber of commerce type people, I would have been just another disgruntled black person. But in that setting, it had an impact that I alone could have never created. I must know how to create those kinds of settings where the information is not all that graphic.






Edward Howden


 [Full Interview] [Topic Top]

Question:
How did you do that?

Answer:
I explained the negotiation process and explained that in order to get into mediation they would really need to decide one, two, three, four, five, what they wanted. What did they want to ask of the other party and what kind of solutions did they want to ask for, what remedies for the problems? This was a slow, slow process.







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