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How would you deal with a demand on one party's agenda that the other party said was non-negotiable?
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Stephen Thom
[Full Interview] [Topic Top]
"How would you deal with a party's agenda that other parties said was
non-negotiable?"We talked about that somewhat. I said that I try to remove that in pre-mediation
and often ask the parties to justify what is their resistance to addressing them and why are they so
adamant in their position. I might try to see if the other party agrees to pass on the issue.
Sometimes they're adamant, like the case I described earlier where the Native Americans said
that it was a sacred mound and the other party said, "That's why we're building here." Sometimes
you have to get permission to pass on the issue and not make it a barrier towards the rest of the
mediation. If it's a key issue, then we are in an impasse. Somebody's got to give in somewhere.
| Nancy Ferrell
[Full Interview] [Topic Top]
Question:
What did you do when one side had an issue or demand that the
other side considered absolutely non-negotiable?
Answer:
Once it came to the table if there were enough other things that were important to move
ahead, we'd put it aside. Often, the important thing about that is, if you try to press at that point,
the whole thing breaks down and you don't gain anything. If you put it to the side, by the time
you've come through all the rest, you bring it back over and say, "Is there any chance we could
look at this?" By then there's been enough confidence and trust built that they can work through
that now. Sometimes not, sometimes it stays there and you may give them some ideas about
other ways of addressing that. Other resources for referral, but not everything is appropriate.
You can't always get the parties to address every issue.
Question:
When you identify something as non-negotiable, do you just table whatever it is and go on?
Answer:
Yeah, it's not always the standard, but generally I have already discovered some things in
small group meetings that they agree on, and they don't even know it. That's one of the benefits
of the mediator too. You begin to know some things about the groups, such as where they're
really willing to negotiate, but they're not willing to tell the other group. You've got to honor that
confidence, but at least you have some hope and you can share that hope. Or you already know
that on an issue of minority hiring, there's agreement there, the department has been frustrated
about being able to find good recruits, but their interest is there. The community's perception is
that they just don't want to. Teacher's especially, I've had lots of school districts say we've tried
and we want to hire some minority teachers, but the community's perception is that they don't
even want to. Again, I'm not going to judge whether or not the administration is telling me the
truth or not. I'm taking them at their word, so we're going to help them know how. The
community has to help me find the resources. You're going to help them to know what schools
to go to and who to talk to, to get qualified, competent, minority teachers who will come back to
this community. Why should they teach here when they can make ten thousand dollars more in
Dallas? It's a reality, that it is a reality. So it does become a joint effort if it's going to be
successful. Now I know from talking to them, they both really want to hire minorities, and that's
something we can start with. I would try to start with things I felt they were closer to agreement
on, because it begins to build some camaraderie and sense of working together, and effort to
solve some of the community's problems.
Stephen Thom
[Full Interview] [Topic Top]
What about issues that maybe they couch as non-negotiable or
that you think to be non-workable. Would you help them to reframe them?
Answer:
I'll give you one story; I do a lot of Native American stuff I guess. I was working with the
Irvine Corporation on the Newport Channel Island Development Project. I was working with the
Gabrielleno Indians and we had a whole agenda of issues. Right off the bat the Native
Americans looked at this particular mound and said, "This is a sacred mound and you shouldn't
build here." The developer looked at the Native Americans and said, "Wait a minute. That's not
negotiable. That's why we're here. Period. This is a million dollar operation and the only reason
we are building here is because of this view looking over the Bay to Catalina. This is not
negotiable." Now, what do I do? So I look at the Native Americans and say, "What do you
think?" They got it. It's not negotiable. They had a whole list of stuff, so they dismissed it. It's
not for me to say, "Well why don't you negotiate half of that mound?" I understood exactly what
they were saying. The other thing that I need to convey to you about
negotiation in these kinds of cases is there is law behind mediations for historical sites and
Native American repatriation. The law says that when remains are found that they need to call
the Native American Heritage Commission and they need to call a coroner. The coroner then
makes the determination that these remains are Native American and calls the Native American
Heritage Commission to determine who the most likely descendants are. Then the most likely
descendants have the right and must be consulted with in remedying any process in the treatment
of remains. That's what the law says, but it's permissive law. Its not "shall," but "may."
So I know legally that the corporations technically could dismiss the Native
Americans complaints so that's why if I was to try to press the developer -- I wouldn't do it
because it's not for me to do -- but if the Native Americans feel they could press the developer
they may more then likely hit a stone wall and lose cooperation on other matters. Really, the
corporations are doing this somewhat at good will and for public relations purposes by and large.
They could comply with the law by doing very little. I've always felt that the law was too weak
in that sense. I guess there have been times when reframing, caucusing, or just clarifying what
and why something is non-negotiable has helped to move the parties.
| 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.
Julian Klugman
[Full Interview] [Topic Top]
Now
there can be argument about issues. If the other side really wanted to get into the definition of
issues, they don't have to accept, they can raise objections. Basically they'll usually accept
them. {Julian Klugman
Non-negotiable issues are not amenable to mediation. You either have the political power to do
it or you don't. That's where the mediator is a reality agent. The issues have to be issues you can
mediate. Someone may want to mediate the beating of so and so. You can't mediate somebody
getting beat up. You can mediate arrest procedures, you can mediate use of force, but you don't
mediate individual complaints.
Question:
What do you do if you have an issue on that table that you think was mediatable, and the
other side says no, it's non-negotiable.
Answer:
That's bad faith, you leave it and you come back to it. You don't get trapped. That's up to
the
mediator, and that happens. I'm stuck on issue number three. I don't stay there. I say, "Let's go
on to issue four, we'll come back to that." So we go to four. I want to get
agreements.
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.
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.
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.
| Leo Cardenas
[Full Interview] [Topic Top]
Were there any issues on the table that seemed non-negotiable?
That either side was not willing to give up?
Answer:
I know there were some, I just can't remember them. It seemed like there were definitely
quite a few.
Question:
From both sides?
Answer:
From both sides. Well, mostly on the community side.
Question:
What did you do with those issues? Did you just let them drop or
did you try to work around them?
Answer:
Well, it was how the final agreement was worked. The fact that it
had commitment for dollars, commitment for a certain period of time, and commitment for the
hiring of someone that would work with the minority community on the development of those
programs. This at least gave the appearance that these issues could be worked out in the future.
Leo Cardenas
[Full Interview] [Topic Top]
What if there is a strong potential for
violence, but it appears as if the issues are non-negotiable? What do you do?
Answer:
Again, because we come from the US Department of Justice, and
even if we didn't I guess, our first priority is to reduce the violence and see that it does not occur
again. A lot of times it's not within our power. Sometimes a
group's agenda is that the only way they're going to gain the attention that they want is through
violence. There are different degrees of violence. One form of
violence may be calling public attention through a rally, not necessarily the use of fist.
Mostly they'll use their mouth and intimidation through the fact that you have a large number of
people involved. It's when you have those ingredients that violence occurs. So their agenda will
be that the only way they can get people to come to the table and to truly negotiate is if they
continue the boycott, or rally for it. If we are also convinced that is the only way, then we'll
work with them, law enforcement, and the other parties. We plan every aspect of it so that it
remains peaceful.
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