Introduction: What happens when one of the potential mediation participants is objectionable to another party? Silke Hansen of Community Relations Service describes a situation in which she addressed this problem by allowing the contested party to act as a consultant. She suggests that preliminary meetings can serve as a way to overcome roadblocks early on.up until "we could have ended the process.

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Deciding Who Will Be At The Table
Silke Hansen
Senior Conciliation Specialist, Community Relations Service
Interviewed by
Julian Portilla
2003
A: The first time we actually got both parties to the table, the first issue was who was going to represent one of the parties. Never mind examining where the flexibility was or room for movement. One of the sides refused to proceed if a particular person remained a representative for the other group. Basically they claimed she is not a plaintiff. We are supposed to be mediating with the plaintiffs. She is just a troublemaker and instigator, a rabble rouser. In fact we might not be having any problems at all if it weren't for her; it was almost to that extent. So if she sits with that group this mediation is over.

The way we finally got around that was in caucus. I was able to persuade the party that didn't want her at the table, that it wouldn't work. I said, "look, let's assume that we reach an agreement when she's away from the table. If you reach an agreement and she's not happy with the agreement what you think will happen?" "Well, she'll probably sue," they answered. So then they came to understand that she might be able to nix any agreement from the outside and that wouldn't be a good thing either. But they already had taken that stand that they had established as prinicple that she couldn't be there.

The way we finally got around this is that she could be there as a resource to the plaintiffs, but the plaintiffs would be the actual negotiating party. That way the defendants were negotiating directly with the plaintiffs but they also saw the value of having this other resource person there because at least any agreement that was reached wouldn't be undermined or thrown out because she wasn't there. Because the reality was that the plaintiffs were going to consult with this person anyway so that consultation was just expedited by having her in the room.

Q: It sounds like she could have sabotaged the process.

A: I don't know that she would, but I think that might have been a concern of the defendants. And it was more convenient ultimately for both if in fact she was part of the process rather than outside of the process. Working that out was a big (whew!) because without that we wouldn't have been able to begin at all. ...

Sometimes there is an advantage to having something like that early on. While I would never generate something like that intentionally, the advantage is that they hit what could have been a disastrous roadblock early on and they passed it. So they had early on had some experience of working out an issue that was critical to both of them and they were able to do it. They got past that. They both showed some flexibility. And from that they saw that this works. So maybe we can do a little bit more.
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