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How did you deal with seemingly intractable demands on a party's agenda for negotiations?
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Edward Howden
[Full Interview] [Topic Top]
Question:
When you
thought of solutions and you didn't see them going that direction did you raise them?
Answer:
Oh I might ask a lot of questions. What's one of the useful concepts, of course, is a reality
check. I would use that often, or occasionally at least, in preparatory sessions when a given
group, usually the minority agency group or minority community group was shaping up its
demands in anticipation of a mediation session. There would often be one demand to fire the
police chief, or fire the supervisor of welfare, for example. We had one case that involved a
social welfare department in a rural county where such a demand, along with eight or ten other
demands, came up, and that took a little doing to deal with. You try to ask how important is that
demand in relation to the other eight or ten. In the case I'm thinking of, there were ten or fifteen
points on the agenda that were shaped up in the course of a couple of long get-ready sessions.
An attorney from one of the public rural assistance outfits helped articulate those concerns and
put them in shape, which was very helpful. In that case you try to counsel people and ask, "is
this demand within the realm of possibility?" This county supervisor of welfare had been in that
job many years, and undoubtedly had high status in the county establishment. Yet the group
was unwilling to abandon the demand that he be fired. But we managed to get them to put it at
the end of the list of fifteen or so.
That leads to another interesting point which applied in this case. Do you submit the demands in
writing in advance of the mediation session? I tended to favor not doing so for the rather
obvious reason, well for a couple of reasons. One, a demand like that was going to blow it. But
even apart from that, if you formalize it all in writing and submit it in advance, you're sort of
making it like a legal court process. My second reason for preferring not to have demands
submitted in advance of the first joint session is that it formalizes it and gets the other party in a
more adversarial stance and lets them prepare to come back with rebuttals, and counter-
arguments. I'd rather have that as a spontaneous process.
They may come back and object like crazy. But if it's in a mediation process where we're tying
to establish some relationships and where I can facilitate it or function as moderator, we've got a
better chance of getting something done. In this particular case I was referring to, with the
proposed firing of the welfare superintendent, the superintendent was present at the mediation, as
well as a key county administrative officer. The group of six or seven Chicano agricultural
workers and community people who had brought their complaints about the behavior of the
welfare department were also there. We got through the first three or four points on the agenda
and we were making reasonable progress when the county administrator leaned over to me and
asked if anybody could call a recess and have a caucus anytime they wanted to. I said, "of
course," and he called for a recess and asked for his team to see the mediator.
So we sat down together, or maybe he just spoke to me privately. His message was that the
superintendent had finished reading all the way down the list and had come to the end of the line
that said, "fire said superintendent." This guy was very helpful in this whole deal. He said,
"This is going to blow it, she's going to walk out and it won't go." What I then did was caucus
with the other group and say, "Hey we got a problem." I guess they were willing to set that
aside, at least tentatively, and see how we could do on the rest of the stuff. So we resumed. By
two or three o'clock that day we wound it up. I went back to the motel room and spent half the
night writing the agreement up, which is one of the functions I did frequently. The next day it
got signed, we had a deal. So reality checks attempted in advance don't always do it.
Werner Petterson
[Full Interview] [Topic Top]
Question:
In
general in this case, when parties would make demands that you felt or they felt were intractable,
how were those resolved? How did you deal with those?
Answer:
We had them because as we tried to apply this solution or this approach, there were many
times we came to real impasses because we had to reach a goal that took awhile to get and the
point got pretty close and this approach really became a mathematical solution. We got arguing
about numbers. Finally we went back-and-forth, back-and-forth, and it wasn't going anywhere --
I finally became an arbitrator. I said, "okay, we've been going back-and-forth on this and I'm
going to suggest that you decide to think about this and let me know." Well, one side accepted
this and the other rejected it. I said, "I guess we can't get anywhere, so I'm going home."
Martin Walsh
[Full Interview] [Topic Top]
How about situations where a party is proposing an agenda that
includes something that you view as a possibly intractable issue. How do you address a party
relating to that?
Answer:
Often times it comes up in the initial discussion. "We want to fire the police chief." "We
want the superintendent fired."
Question:
How do you deal with that?
Answer:
I try to finesse it in different ways by saying, for example, "If we are going to be dealing
with the police chief," or the mayor or supervisor, or whoever it is, "let's deal with these issues
and the issue of whether the police chief is going to stay or not will be up to the administrator. In
the meantime, he is the chief. Do you want to deal with these problems or do you want to wait
until someone makes a decision?" Other times I say, "What's the reality of this? There appears
to be a lot of support for the chief from the city council. How feasible is this?" I think most of
the time community leaders are astute enough. It will be on the agenda, but after that it is the
mediator's job to get to the next step. The message is out there. The mayor might say, "Chief
John has done a good job over the years?" There is a conversation about it and they get it. It's not
one of those things that is usually going to end up as something that is going to be negotiated.
Question:
And on the other hand if one party says "That's non-negotiable, I refuse to discuss it?
Answer:
What I try to do is to get it where it doesn't become an intractable issue. "You can get your
message across. You have already said this. You can use a different forum for it, but in the
meantime if we are going to go forward and make any progress on these issues, are you willing to
let that impair us?" Usually they make decisions to pull back or get the message out. I think
everything can be discussed. They want it out there, but I must say that I have yet to have any
mediation situation where it just stopped everything. Clarifying it, getting people to talk about it
beforehand, realizing the environment, giving a reality check and doing all the things related to it
help to finesse it one way or the other.
Stephen Thom
[Full Interview] [Topic Top]
But we reached an impasse on the issue of the remains that
were on loan to another institution for a period of time. The Native Americans, at that point,
said, "We want those remains to be buried with the other remains at this time. We've agreed to a
time, a date, a location, and we have a ceremony to do. What are we going to do with these
remains on loan? They need to be brought back." The institution was caught, because they had
made a commitment to another institution. We couldn't get the parties to agree on a delay of the
whole process, because the Native Americans were anxious to get the remains into the ground to
evolve its natural process. The institution was caught because it couldn't get the remains back
without violating its commitment. They had talked about talking to the other institution to see if
they could get the remains returned earlier, but that was impossible because the other institution
had not finished doing important testing. I think, in all honesty, the representative of the first
institution made a viable effort to try to get the remains and expressed that to the Native
Americans. So we were stuck in this impasse. We couldn't figure out how we could get the
Native Americans to allow the institution to have an extension. It looked like we had to go that
way because the institution that had borrowed them had not finished what they needed to do and
had begged the institution to allow them to do that. And in good faith, the first institution said,
"We cannot violate that commitment." We were there for hours. We
looked at all the options we could come up with. We caucused and we came back. We took
lunch and came back to the table, but there was no movement. We did everything we could to
see whether we could refresh and energize the parties to back and figure out some acceptable
option. It was about the third or fourth caucus when one of the
representatives came up to me and said, "I think I have the way." She was the spokesperson of
one of the tribes. I asked her what was it? "They have to tell us." "Tell you what?" I asked.
'They have to say, 'That's the way it is, you can't have them. That's the only way. You can't have
the remains until we are done in two months.' They have to tell us."
Question:
Who was at that session?
Answer:
It was a caucus. We had taken a break and she had come and asked to caucus with Larry
Myers and myself.
Question:
She wanted to talk to you away from the group."
Answer:
Yes.
Question:
Was she representing the group?
Answer:
She was a strong enough leader and we knew she had the confidence of most of the group.
There was no doubt about it that whatever she said was going to go. She had that kind of
influence. It was kind of interesting because we went to the institution and told them they had to
say, "This is a non-negotiable! You have to tell them that those remains are not going to be
available, absolutely, and that's the only way this is going to work. And the Dean of the
Department said, "What?" He didn't want to take a hard position and feel like the institution was
being dogmatic. They had been very open and cooperative and all of a sudden now they are
going to say, "No...this is absolute...you can't have them for two months, and until this takes
place, they're just not available." They were very reluctant to do that, but Institution
representatives finally realized what the message was. The real message behind the option was
that the Native Americans did not want to betray their ancestors. If they gave permission for the
University to hold the remains any longer then they would have violated the trust of their elders
and the spirits of their ancestors. But if they are told by the institution to wait two months, then it
wasn't on them. It was the ownership of the betrayal that was important to them, and that was the
only way we got through that impasse. It came through a caucus...and nobody really wanted to
do it, but it was the only way. So, there was an agreement that there would be an extension.
Those are the subtle things that made this case very memorable for me, because after
all that impasse, sometimes it's just the little subtle, intimate way you say things, is sometimes
more important that the whole issue. That one has always left a lesson for me. It was a special
case.
Stephen Thom
[Full Interview] [Topic Top]
So in those impasses, caucusing has been the key for me in most of
those situations. But you try all the probing you can, and try to move it. We've taken a lot of
breaks, come back after meals, but I think the probing that a mediator does in terms of getting the
parties to think beyond the box is probably the best way to get through those impasses.
Stephen Thom
[Full Interview] [Topic Top]
"How do you deal with seemingly intractable demands on a
party's agenda for negotiations?"Reflect on the big picture. By that I meant let's look at the
context that issue is being laid and what does it really mean towards an outcome and a
non-outcome. I drive that. "Is it valuable for you to maintain the relationship? Is it valuable for
you to come out here and have a resolution? Are you going to have this issue intractable and
have it be a barrier to what you want to accomplish?" I draw that big picture, do a reality check
on that issue. "Why are you holding that issue so intractably? What's behind it and is it
realistic?"
| Bob Hughes
[Full Interview] [Topic Top]
Can you talk a little bit about how you deal
with apparently intractable demands from the part of one party? Or one party saying well that's
non negotiable, if somebody makes a demand that the other side says is non negotiable and won't
comply?
Answer:
Perhaps in setting an agenda for the sessions as an area that's my responsibility. I might
manipulate the agenda by putting say a particular issue last, on the assumption that, we wouldn't
get to it, or if we got to it we'd be so tired we couldn't deal with it. That's agenda manipulation
which is a prerogative of every mediator.
Question:
What if it was a key item?
Answer:
I don't know. This may not be a direct answer to your question, but I think I had mentioned
sometimes I can anticipate pretty well how a session is going to go. How many meetings we are
going to have and that sort of thing. And there are others like the one I was telling you about
earlier, about the school district. I could not see how under the sun we could come to any
agreement here, but in that case the parties themselves ultimately used the process that we were
going through to create an answer that I simply had not seen. They came up with the idea
bouncing off of each other which was the breakthrough. So, I can't claim any credit for it. I just
managed the process and they came up with the breakthrough and what sure looked to me like an
intractable issue that I couldn't see how to get around it. That's about as much as I can say on
that. But I don't think we ought to sell the parties short. The mediator isn't the all knowing
person. The parties themselves can discover and create things that we can't see.
Efrain Martinez
[Full Interview] [Topic Top]
I'm
sure you wouldn't have done it in this case, but did you ever run
into a situation where one group asked for something you thought
was a reasonable request, and the other side no, no way?
Answer:
Yes, and the I explained possible benefits of saying yes but the officials still said no. What I
want them to do is analyze themselves as to what they see is doable and not doable. We're
talking
about remedies, solutions finding. Like in this case where they
wanted a citizen review board, they probably could've gotten it.
Communities do have those, but not necessarily in that fashion.
Will Reed
[Full Interview] [Topic Top]
Anyway, a group of black
and Hispanic prisoners got together and wanted to
meet with me. We sat down and went over the things they wanted, their concerns. I said, don't
call these demands, because you're never going to get a thing if you start talking about demands.
You
don't demand anything. You're not in a position to demand anything. I spent the night down
there and
then I wrote down their issues and concerns. I always made them turn things around in a more
amicable
way. I told them, you can't demand things. I let everybody know that. I said, "You've
got some things that you're concerned about, and we can address these issues. Then, maybe we'll
be
able to maybe effectuate some change. So, why don't we write these things out and work
together?"
Dick Salem
[Full Interview] [Topic Top]
Question:
So coming back to
the table, when one side makes a demand or a request that the other side absolutely isn’t going
to budge on, what do you, as a mediator, do?
Answer:
Try to find out why, try to keep the conversation going. I mentioned the case where the
American Indians wanted a peer counseling at the reformatory in St. Cloud, and it was clear a
wall was put up and it was not retractable at that point in time. So some dynamic is going to
have to change, but on that day, that week it wasn’t going to happen, and there was nothing that
I could do. Now, we could have taken a break and I might have gone over to talk to somebody,
but it was pretty clear that the union had taken its stand and was in control. They were quiet the
entire mediation. For 6 months they really had few demands and I knew they were very angry
that the administration was yielding on so many points. Then all of a sudden, this is their stand.
We are the counselors and nobody else , no inmate, is going to do counseling. The fact that it
was better for the inmates had nothing to do with it. The administration knew they couldn’t
pass that line and they didn’t. It was clear to me. Probably clear to the inmates that they
wouldn’t accept it. There was no need for me to go over to somebody and say, "what’s going
on? Can’t you open up?” There might be other cases where I’d sit with somebody, but not
then.
| Julian Klugman
[Full Interview] [Topic Top]
Answer:
You tell them. You tell them why. It's like I said with the
schools
where the principal said, "We don't have racial problems." That's it. That's the end. I say, you
have no racial problem and there's no reason to do anything. There's no reason to change if
everything's fine.
Question:
What if you have acknowledged problems, a serious problem, but it is clearly
non-negotiable?
Answer:
Then you suggest alternative ways of dealing with it.
Question:
Which would be what?
Answer:
Lawsuit. Let's say one side really isn't ready to deal with it. My son was beaten up, he's
black. There's a whole series of issues. What do you do? Get a lawyer. Can you give me a
name of a lawyer? No. You have to be very careful; you suggest alternatives. You can also file
a complaint with a civil rights agency.
Question:
You were saying you do not recommend lawyers?
Answer:
No, I'll tell you who to call, legal services, I don't recommend anybody. I'll tell you to file a
complaint. You have to know who the civil rights agencies are. You file an employment
complaint here. There's the Americans with Disabilities Act. You don't just tell people, you
give them a name and a phone number. Explain the process and the reality of the process to
them. Tell them how long it's going to take. You may suggest other appropriate mediation
services.
Question:
The only cases you dealt with were civil rights violations?
Answer:
Race. Title ten is race, not women, not gender, not sexual persuasion, race.
Question:
What about situations that are not conflicts, but maybe legal violations? Such as tensions in
the school.
Answer:
We were in schools all the time. Do you mean, legal issues?
Question:
Well when you say,
Answer:
No, our mandate was to help communities deal with racial tension. Well, that is civil rights.
The two big areas of civil rights violations are schools and police. That's three quarters of them.
So three quarters of what we're dealing with are schools and police.
Efrain Martinez
[Full Interview] [Topic Top]
Tell me
what the issues were.
Answer:
Something like the Klan wanted the Vietnamese to get out of
town. Essentially that they should leave or they should limit
the number of boats on the water.
Question:
How did the Vietnamese respond?
Answer:
They of course said, "We can't do that." It would've been
illegal because as long as they meet the state and federal
requirements, it's a legal activity. Both sides agreed that
shrimping was a resource, and shrimp were like a bank account,
they all believed that they should not over shrimp. Putting it in
terms of a bank account, you could withdraw the interest every
month, but not touch the principle. Both sides agreed that
they needed to be careful about conserving the principle amount of
the shrimp and not over shrimp because there wouldn't be anything
for anybody to harvest.
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