Mediation Teachable Moments

Ken Hickey, our most senior Mediator, offers insights on Negotiations and Mediation gleaned from a 40 year career as a Labor Attorney.  His musings will be a regular part of the SERB webpage. Your comments and feedback are welcome.

Donald M. Collins, Esq., General Counsel

   Musings of a Mediator - Ken Hickey, Esq., SERB Mediator

October 20, 2016

I have wanted for years to write a few articles based on some of my experiences in negotiations and mediation.  But, alas, time passes and I always find an excuse why I cannot do it or time does not permit it or other reasons why it cannot happen.  Today I was having lunch with a colleague and was telling a story of negotiations to make a point.  Then I said to myself “Let’s do it.”  So here it is.  Let me know what you think and whether I should do this more often.

The story concerns a negotiation that occurred some years ago involving AFTRA (American Federation of Television and Radio Artists) and a TV station in the Washington D.C. area. Two of us were representing the TV station and the representative for AFTRA was a wonderful woman by the name of Evelyn Freyman, a former actress and a staunch negotiator for AFTRA.  Evelyn and my co-negotiator, who was the senior person on our negotiating team, were like oil and water.  Whatever one said, the other said the opposite.   Obviously, negotiations ground to a halt. 

My co-negotiator, who we will call “Richard” and who was senior to me, would say: “Let’s talk about Article 7 and 18 today.  I propose the following for . . . .”  Evelyn would interrupt and say, in a very affected voice with all of her stage presence: “Richard, I do not wish to talk about those things today.  I want to talk about Article 4 and 13.”  Back and forth we would go without much being accomplished other than Evelyn and Richard talking past one another.  Our client never said anything because they thought that this was how negotiations occurred and we – Richard and I – were the professionals. 

Finally, on the fourth day (you can imagine the mental state of all 13 people around the table after 30 hours), it started with Richard saying: “Well, Evelyn, we wish to talk about Articles 7 and 20.  I propose...” Evelyn interrupted: “Pardon me Richard, but I cannot hear you.”  Richard started talking louder and each time Evelyn quietly said: “Richard, please speak up.  Use your stage voice if you have one.”  Tempers escalated and then Richard stood up, with his coffee cup in hand, and started to walk around the table.  Visualize a table seating thirteen people.  Evelyn also arose.  They both then walked down the long table and finally were face to face at the foot of the table.  I, along with all the others, was shocked and waited for whatever was to follow.  Richard spoke softly and Evelyn affectedly talked louder.  Fearing a more physical encounter, someone, who I cannot recall, asked for a caucus.  We then recessed for the day. 

After a few days passed and while awaiting the next encounter or negotiations, whatever you wish to call it, I met with Richard and suggested that at the next session we talk about whatever Evelyn wished to talk about.  Richard was not comfortable doing this but after lengthy discussions and after agreeing that we were comfortable talking about any issues on the table, he consented to let Evelyn set the topics. 

We then convened a week later.  Richard sat there quietly.  After a passage of time, Evelyn said: “Well, Richard, what are we talking about today?”  He said: “Evelyn, we will talk about anything that you wish to talk about?”  Evelyn said: “Finally.  Finally.”  She smiled and said: “Lets negotiate Articles 4, 6, 7 and 13.”  Within two hours we settled 8 of the 10 open Articles of the Agreement.  We then let Evelyn set the Agenda and we concluded the difficult negotiations.  As a postscript, I later did 5 or 6 other negotiations with Evelyn and they all went well.  She was an excellent negotiator. 

What is the point of the story?  Sometimes we have to let go of our perceptions and understand the perceptions of the person on the other side of a negotiation.  Evelyn wanted to be in charge and Richard wanted to be in charge.  Who cares in the end who is in charge if you can reach an accord with the other party?  Don’t you both win with an agreement? What if the other party makes a proposal that is acceptable to you?  Do you accept it?  Or do you want to add to it?  Why add to it if it is acceptable?  Ego.  Ego.   

I am reminded of President Reagan, who prior to the White House was a Governor of California and a six term President of the Screen Actors Guild, AFL-CIO.  He never let ego get in the way. It was not always about him. On his desk in the Oval Office, President Reagan kept a small plaque with the words: “There is no limit to what a man can do or where he can go if he does not mind who gets the credit.”

As a mediator, I see the EGO scenario repeat and repeat itself in the various negotiations in which I participate.  Sometimes I can solve it by asserting that I am in charge, when anyone knows I have no authority whatsoever.  Other times it occurs and reoccurs. 

Let me give an example.  Let’s say the parties are talking about overtime distribution.  The Union has a proposal and the City has a proposal.  As a mediator, I get the parties to put aside their proposals and just talk about the issue, their interests, and possible solutions.  Then the Union puts a proposal in writing that seems to be acceptable to the City based on the discussions.  BUT – and this is a big BUT – the City rewrites it in their own language.  Then that is given to the Union.  The Union says to themselves: “What are they trying to sneak by us by putting it in their language?  How is this different from our language?  Why wasn’t our language acceptable?”  Then they read something that is not there in the City language and rewrite it in their own language which is different from their original language.  And on it goes.  Are you confused?  Frustrated?  I am.  It can take me some time to get one or the other to accept the others language. Why? They are acting like Richard and Evelyn.    

How do we solve this?  First, we should talk about options that are short and sweet.  No more than ten words.  Example – “Overtime is voluntary.”  “Distribution by seniority with everyone given an opportunity.”  “Emergency situations handled by continuation on duty.”  Assume all are acceptable, and then one person from each team will meet with each other between sessions to draft the language.  Those two then come to the next session with the jointly crafted language.  All persons ask questions, agree on language, and amend language, if necessary, at the start of that session.  It works.  By reaching agreement on concepts, the parties can work together in smaller teams to draft the language.  Remember that the language drafters need to have experience doing it and must devote the time necessary to work out the language between the sessions. 

Devote the team time to agreeing on concepts and leave the language to the team members equipped to handle it once they have direction from the teams.  Understand the perceptions of the other side.
Hope you enjoyed the story and its lessons.  A new story will follow in time.