The Perfect Storm: Anatomy of a Failed Regulatory Negotiation - Chapter 68 - AAA Handbook on Mediation - Third Edition
Lynn Sylvester holds a J.D. from the University of Wisconsin. She was a Mediator with the Federal Mediation and Conciliation Service from 1989 until her retirement in 2015.
Ira B. Lobel holds a J.D. from Catholic University. He now has a private arbitration and mediation practice and was a Mediator with the FMCS from 1974 until his retirement in 2003.
In addition to their primary work in the labor field, the authors both have conducted numerous regulatory negotiations for several federal agencies, including the Center of Medicare Services, the U.S. Departments of Transportation and Education, the Department of Housing and Urban Development, and the Equal Employment Opportunity Commission. Ms. Sylvester can be reached at firstname.lastname@example.org; Mr. Lobel can be reached at email@example.com. The views expressed are the authors’ and do not reflect the views of the FMCS or any other entity.
Lynn Sylvester & Ira B. Lobel
In the film the “Perfect Storm,” the actor George Clooney takes a reluctant crew out to sea to catch swordfish. They find themselves in the middle of the convergence of two furious storms. In the film, there were no survivors. In October 2002, we participated in a regulatory negotiation (“reg-neg”) that felt much like being in a perfect storm. After 19 days of meetings, the negotiations concluded without an agreement.
We are both experienced mediators and facilitators. Our approaches to mediation are different but complimentary, one emphasizing process and strategy, the other focusing on the end product. These differences can become strengths as we found out during this reg-neg. However, no amount of experience as a mediator or facilitator can guarantee that an agreement will be reached. Since this is one of the few reg-negs that was not successful, we write this chapter with the luxury of 20-20 hindsight, to analyze what made the negotiation so stormy and what, if anything, could have been done to change the outcome.