“I have a juicy proposition for you,” Steve Goldberg said to me one evening over dinner at the Harvard Faculty Club in March of 1980. “I just got off the phone with a high-level officer at the national mineworkers union and an executive from the coal employers association. They have a really tough conflict on their hands at a coal mine in eastern Kentucky.”
“What’s it about?” I asked, my curiosity piqued.
“Well, all I know is that the miners keep going out on wildcat strikes. Management reacted by firing a third of the workforce,” Steve replied. “It has gotten really ugly. Both officials are afraid that the strike will spread to other coal mines. They’re worried it might even trigger a nationwide coal strike that could shut down the whole economy.”
“What do they want you to do?”
“They’re asking me to mediate,” said Steve. “Here’s the rub. I’m an arbitrator. I listen to the facts and I make the decision. I haven’t had any real experience mediating an agreement between the parties. Would you like to join me and help me figure out what to do?”
Steve was a highly noted and respected arbitrator in the coal industry with many years of experience. A professor at Northwestern Law School, he had been invited to be a visiting fellow at Harvard Law School to work on an innovative proposal to introduce grievance mediation into the coal mines as a prior step to arbitration.
I was a graduate student at the time studying the theory and practice of mediation and looking for any chance to get out of the library and into the field.
“Sign me up,” I told Steve.
Steve and I flew down to Kentucky the next week. It was the beginning for me of an extraordinary adventure into the world of coal mining as well as into labor mediation and arbitration—all thanks to Steve. Up until then, I had mediated small legal claims and assisted others in an advisory role on various international negotiations, but this was my first hands-on experience of mediating over many months between bitterly quarreling organizations in a complex protracted dispute. It was a veritable initiation that eventually led to a doctoral thesis, a book with Steve and his partner and colleague Jeanne Brett, and the development of a new framework for thinking about what we came to call dispute systems design.
In Kentucky, Steve and I had our work cut out for us. Over the next six weeks, we shuttled back and forth between the eight union leaders and the mine’s management. We met with each side multiple times and got to know them a little better. Steve commanded respect as an arbitrator with the bearing of an ex-Marine. He radiated authority. He also had a knack for asking hard questions and was a good listener—a foundation for the talented and trusted mediator he was to become. Together, we listened carefully, trying to understand what exactly was triggering the wildcat strikes and what could help bring them to an end.
In between trips to Kentucky we consulted with Jeanne, who became a full thought partner in our mediation experiment in the coal mine.
Drawing on the suggestions we heard as well as our own ideas, Steve and I drafted up a set of proposed changes to the contract. We focused on the procedure for handling grievances, figuring that if miners saw a good way to talk out their gripes, they wouldn’t walk out. Learning from Steve’s original research, we added grievance mediation as a step.
On this basis, both sides finally agreed to sit down for a two-day meeting to iron out the details. Steve chaired the meeting with customary gravitas and positivity. To everyone’s surprise, the parties reached agreement on the language. Each negotiator walked up to the head of the table and signed their names on the document solemnly as if they were signing a peace treaty between warring nations.
There was just one little procedure to complete. The miners needed to ratify the agreement. Everyone expected it to be a mere formality given the support of the union leadership.
And indeed, the vote was nearly unanimous—in resoundingly rejecting the very agreement their leadership had just painstakingly negotiated.
Our first major mediation was a complete bust. Our initial excitement turned into a queasy feeling of disappointment.
What had happened?
As we learned, the miners had rejected the agreement simply because anything management had signed onto must be a trick. They didn’t trust it. Even if the proposed agreement on paper addressed many of their grievances, it felt safer—and far more satisfying—to deliver a deafening no.
We had failed to foresee this problem because we had assumed that the conflict was between two monolithic parties, union and management. We had assumed that the union leadership spoke for their constituents—the rank-and-file miners. We had assumed that whatever the leadership agreed to would be overwhelmingly supported. We were dead wrong.
It was a huge lesson for both Steve and me—and served us well for decades to come as we each developed into full-fledged mediators.
Steve and I did not give up, however. We adopted a different approach, this time focused on the missing stakeholders—the miners. I moved down to Kentucky for the summer. Each day, week after week, I went into the mine to hang around and talk to anyone who would speak with me. It was hard at first to get time with them and build trust. But after a hair-raising hazing in which the miners initiated me as a “regular coal-miner,” the miners began to approach me with their grievances. I was able to persuade management to listen and address the grievances through the multistep negotiation process that Steve and I had proposed in the agreement that had been so resoundingly rejected.
Gradually, as we were able to settle one grievance after another through negotiation, the miners began to trust the process. The relationship between miners and managers improved. And to everyone’s surprise, the wildcat strikes ceased almost altogether. Step by step, little breakthrough by little breakthrough, the conflict was transformed. It didn’t end, but the form changed from costly and bitter strikes to mediation and negotiation.
Thanks to Steve, I now had the original research material for a doctoral thesis in social anthropology that I entitled Talk Out or Walk Out: The Role and Control of Conflict in a Kentucky Coal Mine. At the same time, Steve took a risk and generously recommended me, at the young age of twenty-eight, to become an arbitrator in the coal industry and then proceeded to coach me in the craft. It was classic Steve—bold and open to any possibility.
Some years later, when visiting Steve and Jeanne at their home in Chicago, they asked me whether I was planning to turn my thesis into a book. I replied, “I have a better idea. Why don’t the three of us collaborate together on a book where we blend our different disciplinary backgrounds in law, psychology, and anthropology in order to examine our experiences in the coal industry and examine what it takes to design dispute resolution systems?” Steve and Jeanne agreed with alacrity and we embarked together on our next adventure.
That summer we gathered at Steve and Jeanne’s charming home in the ancient little village of Venasque in Provence. It was Steve’s picture of heaven. He loved life in this village with a passion, reveling in its beauty and simplicity. He seemed to know everyone, greeting them by name, as he went from shop to shop, running family errands, conducting his affairs in fluent French. It was a joy to watch him in his bliss—and such a seeming contrast from the grave arbitrator-mediator in the coal mines of Kentucky and West Virginia and the bright professor in his law classroom at Northwestern.
Steve, Jeanne, and I had long talks and walks—in between time with their young daughters Amanda and Gillian—and we wrote in the mornings and late afternoons. Evenings were spent over delicious French meals with wine. It was an idyllic way to write a book.
The book took the form of case studies of disputes in the coal industry but the core of it was the intellectual framework we created around dispute systems design. At that point in the 1980s, the field of dispute resolution had reached a turning point. Until then, the emphasis had been on developing individual dispute resolution procedures such as negotiation, mediation, and arbitration. It was now time, we argued, to adopt a broader perspective, asking how these procedures could be most effectively used to form an integrated system for dealing not with just a single dispute, but with the stream of disputes that arise in nearly all relationships, organizations, and communities. Do there exist overarching principles for designing effective dispute resolution systems?
In Getting Disputes Resolved: Designing Systems to Cut the Costs of Conflict, we concluded that such principles do exist. Initially, we distinguished three major ways to resolve disputes: to reconcile the disputants’ underlying interests, to determine who is right, and to determine who is more powerful. We argued that in general an interests-based approach (such as problem-solving negotiation) is less costly and more rewarding than a rights-based approach (such as court), which in turn is less costly and more rewarding than a power-based approach (such as strikes or wars). The goal, then, is to design a system that provides interests-based procedures for disputants to use whenever possible, and low-cost rights-based and power-based procedures as back-ups.
That book and the framework of interests, rights, and power applied to dispute systems design was our collective brainchild. It helped establish what has since become a thriving subfield of dispute resolution. And it all started with Steve’s generous invitation to join him on an adventure in the coal country of Kentucky.
Looking back with the perspective of forty-five years of friendship and collaboration, I want to register a profound debt of gratitude to Steve Goldberg—to his keen mind, entrepreneurial spirit, and deeply kind nature. He was truly a mensch. I consider it one of life’s great privileges to have known him and to be his friend. I will forever remember the twinkle in his eye, the spring in his step, and the warmth in his heart.
