Originally from Dispute Resolution Journal

In this article, the authors analyze some of the things that can go wrong in a regulatory negotiation. After completing a reg-neg with the Center for Medicaid Services, the authors candidly discuss aspects of the negotiations that they might have changed if they could do it all over again. The lessons should be considered in future reg-negs.

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 article 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.