The Perfect Storm: Anatomy of Failed Regulatory Negotiation - Dispute Resolution Journal - Vol. 59, No. 2
Lynn Sylvester holds a J.D. from the University of Wisconsin. She has been a mediator with the Federal Mediation and Conciliation Service since 1989. Ira B. Lobel holds a J.D. from Catholic University. He 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 email@example.com; Mr. Lobel can be reached at firstname.lastname@example.org. The views expressed are the authors’ and do not reflect the views of the FMCS or any other entity.
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.