Archive for the ‘Mediation’ Category

The National Football League (NFL), and the NFL Players’ Association (NFLPA) have just concluded 7 consecutive days of negotiation and dialogue. This is a vast upgrade from the “I’ll only talk if it is about what we want” stance that seemed to pervade the previous several months of non-talks. As I indicated in my prior blog, the entrance of a federal mediator into the mix has been invaluable. George Cohen, the mediator, indicated that though some progress was made, very strong differences remain. Mr. Cohen – and rightfully so – has imposed a “Cone of Silence” on all parties to these intense and high level negotiations.

So, you might ask: “What exactly has been going on for 7 days, such that such major disagreements still remain?” One can only speculate, so let’s  do just that!

First of all, this last week has been the first time that any truly authentic and organized talks have taken place without posturing in the press and “not even close to the playing field” demands. It takes time for a mediator to guide the culture of conversation away from unrealistic high/low expectations and  proposals, to true dialogue where the NFL and the players can articulate and address their concerns, priorities, and interests. It is a a true paradigm shift.

A key and often difficult part of negotiations is identifying areas where there might be a fairly clear “zone of agreement”, and areas where both sides are way far apart. In  explaining this dynamic to mediation trainees, law  students or clients, I ask them to envision  a pyramid: the tippy-top of the pyramid – the point – is where lie the toughies – issues wherein there will be very difficult conversations. At its broad base are the lesser contentious issues, where agreement might be reached. An option in negotiation is to start at the top: “If we can get those issues resolved, the rest will fall like dominoes”. Or, one might start with the simpler issues at the base of the pyramid: “We are likely to fairly quickly resolve some of these collateral issues. Perhaps that will grease the agreement motor and thus make it easier to talk about the hard stuff.”

I suspect that the “progress” noted by Mr. Cohen may be interpreted as the parties having been able to identify their issues, pinpoint  where these issues fall on the pyramid, with accompanying successful discussion and perhaps even agreement around the “base topics”. Mixed into this, remember, is the hard work Mr. Cohen has been doing in his attempt to bring these high powered, sophisticated, high-ego parties from the parking lot to at least a place resembling the playing field of productive discussion.

Now, talks are scheduled to resume next Tuesday, March 1. Everyone needs a break right now. The representatives for the NFL and the players need to report to the owners and the players. Due to the highly contentious “tip of the pyramid” issues that remain unresolved, it is entirely possible – even likely – that there will be a lock out come midnight, March 3. Once owners start losing money and the players see the possibility of losing game checks – the real bargaining will begin.

So take a deep breath! The party has just begun.

In my experience, it is all to common for two sides in a contentious and partisan  negotiation to dither and moan, “pick a little, talk a little”, until, at the proverbial 11th hour, they get down to the real business of getting things done.

No better example of this is the lengthy, protracted “negotiations” between the National Football League (NFL) and the National Football League Players’ Association (NFLPA). These two parties have known for years that the deadline to renegotiate a new Collective Bargaining Agreement is midnight, March 3, 2011. If no deal is struck by that time, it is likely the NFL will initiate a lockout of the players. It is just as likely the players’ union will seek steps towards decertification. In short, everything in the National Football League will come to a screeching halt.

Mind you, there have been some talks.  These ended in November, 2010,  and picked up again when the NFL and the NFLPA got together a couple of Saturdays ago to set an aggressive agenda and schedule of negotiation sessions. During next real negotiation session, the players  made a proposal to the NFL owners.  In a showing of shock, dismay and disagreement, the owners took their ball and left the field. Nothing further was scheduled until . . . . .

The Federal Mediation and Conciliation Service – FMCS -  entered the scene! Briefly, under the Labor-Management Act of 1947, FMCS provides free mediation services in contract negotiation disputes between employers and their unionized employees. All the parties have to do is make a request. So, a request was indeed made.

A mediator is a neutral third party professional who sits with those in conflict  and helps them have a constructive dialogue around the issues in dispute. The goal of the neutral, among others, is to create a safe and confidential container within which these often difficult and emotionally charged conversations can occur.

If a mediator had been present during the last, aborted negotiation session, he or she – or they in a co-mediation model – would have intervened and helped the NFL owners understand the value of continuing to sit at the bargaining table to work through the impasse created by the players’ proposal.

A key aspect of mediation is the element of confidentiality. There will be no more negotiations through the media, or representatives tossing out barbs for public consumption. George H. Cohen, the director of the FMCS, has stated that due to its standing policy, there will be no public comment about future scheduling and/or the status of the negotiations, which is as it should be.

The first mediator guided  negotiation session is  is set for Friday, February 18. Under a structured and orderly mediation process, the real work of creating an authentic, durable, and mutually acceptable resolution can begin.

A new TV show my wife and I have come to enjoy is “Parenthood”: Well acted, funny, serious and enjoyable. And: lots and lots of “drama and  angst” between befuddled and scared  parents and their teen aged children.

In the most recent episode, mom and dad are reviewing their 15 y/o daughter’s cell bill and are angry at the several hundred dollar total – with the discovery many calls and texts are to one number. They call the number and are  appalled to hear a youthful outgoing message laden with the hip slang popular with kids but foreign – and threatening – to these parents. Filled with fear and protectionism,  they burst into their daughter’s room, hack into her computer and discover she’s “Facebook Official” with a young man whom she’s been secretly dating for a month.

They confront their daughter and reveal all this information, leading her to decry this invasion of privacy. She accuses them  of going “Homeland Security” on her. They ground her, she sneaks out of her room, they track down the boyfriend’s home to “check out the parents”, etc., etc.

A key scene is when dad finds his daughter and is driving her back home.  Not unexpectedly, a “battle royale” ensues, something along the lines of:

“I can’t believe you sneaked out like that. You are grounded. No computer. No cell phone.”

“What! You invaded my privacy! You have no right! And, you haven’t even met Steve!”

“You have been dating him a month without telling us!”

“It’s my life!”

“We’re your parents!”

“What you did with my computer  is illegal! It’s my room!”

“You’re living in our home!”

Does this conversation sound familiar? Parents full of real fear and concern for their children’s safety and well being. Kids feeling their parents don’t understand them, trust them and respect them.  Problem is, those underlying feelings, worries and anxieties are not being expressed and are not being heard. So, the positional and confrontational “discussion” fuels and reinforces the daughter’s anger and belief her parents have no clue and don’t respect and trust her. Dad can’t understand why her daughter doesn’t see the potential danger in what she’s doing and that he and mom are doing all this “for her own good”.

There is a free mediation program provided through the City of Bellevue called “Parent-Teen Mediation”. Real parents and real teens are trained to co-mediate disputes, disagreements and difficulties between parents and their children. The program recognizes the difficult challenges that accompany the transition of children to adolescents. The mediators listen to the parents and the teens without blaming or finding fault, around issues related to school, home, rules, dating, etc.

You can find more information about this tremendous program here.

This is what mediators do: help people get below the surface anger and accusations, to authentic listening around fears, interests, concerns and anxieties. Only then can a bridge be built  to true communication!

It is very difficult to predict how long mediation will take or, for that matter, how much the overall process will cost. A lot depends on how discussions proceed, and on the complexity of the matter. As you might expect, every situation is unique and special. For divorce and family matters, for example, I have found it takes from two to six sessions, at two hours a session, to adequately cover all the issues raised, and reach agreements that are acceptable to each party.