By Steven G. Mehta

I had noticed in the New York Times that a prominent labor and international mediator, Ted Kheel just passed away at age 96.  I also want to thank my fellow mediator Mike Young for pointing out the obituary in the L.A. Times, which also addressed some of Mr. Kheel’s viewpoints.  I thought it would be appropriate to discuss a few of his thoughts, as identified in the recent articles.

According to the L.A. Times,

An expert negotiator and mediator, Kheel would ask both sides to tell him, in front of their opponents, exactly what they wanted so he could identify the key issues.

“The essence of mediation is getting information,” Kheel said in a 1970 profile in the New Yorker. “The dirtiest question you can ask in bargaining is, ‘What will you settle for?’ If you ask that question, you ought to resign, but that’s the question you must have an answer to. You get it by asking every question except that. What’s left over is the answer.”

(See L.A. Times article

In addition, ANDREW C. REVKIN in an opinion piece in the New York Times wrote, “Kheel also had a great way of dissecting a disagreement as a first step toward resolving it. Too often, he told me many times, parties in conflict clash over a tangle of overlapping rights and interests, when the route to resolving each kind of dispute is very different.

A right is something delineated under a contract or law — the kind of thing you can take before a judge, he’d say. An interest is a stake, delineated by a mix of power, history, negotiating skill, greed and other softer factors.”

The New York  Times also interviewed him on video and he explained that he doesn’t ask the parties when he gets them together, “what do they want and why?”   Instead, he asks only, “What do they want?”  He explained that in explaining what they want, the other side often sees that they had a misunderstanding as to the specifics of what the opposing side wanted, and in doing so, can also understand the reason why.

I agree with Mr. Kheel wholeheartedly with regards to the issue of not asking the bottom line what would they settle for.  Generally, even when the parties tell me that they want to tell me their bottom line, I ask that I not be told.  Most often I can discern the bottom line myself.  In addition, Mr. Kheel’s point addresses the contradiction between verbal messages and non-verbal messages that are communicated throughout the mediation.  Often, the bottom line is actually far from what the parties might say is their bottom line.

This issue also addresses another point regarding bottom lines, which is unstated in Mr. Kheel’s comments.  If people state their bottom line, it may be hard to get them to move away from that bottom line because they have made a public commitment to a certain position.  There is a lot of research that shows that once a person public commits to a position, even if only privately, that person is more likely to defend that position.  As such, rather than let the parties defend their stance on the bottom line, I don’t inquire of that topic.

Finally, sometimes people have flexible bottom lines.  If you ask them to commit t0 that position, you have forced them to take a stance that they might not have otherwise have done in the first place.  In many cases I mediate, the party may have an idea as to where they would “like” to be, but they do not have a hard stance on that desire.  Often they are open to input from the mediator as to the reasons as to why the end result may be something other than what they would like.  By forcing a commitment as to what they would settle for, the mediator may have usurped his own role in the process.

I don’t, however, agree with Mr. Kheel’s position in some cases regarding the issue of not about the reasons for a position.  In litigation — which is often zero sum — the “wants” are easy: someone wants a lot of money, the other wants to pay zero.  The reasons are more important to me in trying to find a solution that may be amicable.

In just reading Mr. Kheel’s obituary, it is clear that society has suffered a great loss with a truly master mediator.  The following statement he made about settlement is just one reason why he will be surely missed.  “It is like sculpting an elephant. You chip away everything that doesn’t look like an elephant, and what’s left is an elephant. When you’re trying to get a labor contract, you do the same thing. You chip away everything that doesn’t belong in the agreement, and what’s left is the agreement.”

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