Engagement, as described in my last post, doesn’t easily fit into a standard negotiation, largely because the “enforcement” of the agreement doesn’t have an external accountability mechanism. Either the agreement is internally self-enforcing or it doesn’t work.
The cooperation of the parties doesn’t depend on punishment delivered by a third party, like the law, or a regulator, or a deity. An agreement that results from engagement lasts as long as the parties continue to experience the benefit (or potential benefit) and no longer.
Because engagement results in an informal (even invisible) agreement, it can be used as a way to make progress when more typical negotiation approaches would be impossible or would take too long:
- Immediate agreements between enemies (as in my previous post)
- As an approach between political opponents when public collaboration would have high political cost
- When the explicit problem facing the parties is impossible to resolve publically in a time frame that would actually be of use to those parties
I am sure this all seems very abstract.
Well, it is.
While the examples I discussed in my last post are very concrete, they also aren’t terribly relevant to disability rights advocacy. I am going to go through an example in some detail using my next post that was the most complex special education advocacy case in which I was ever involved, to give more depth to the abstract discussion above.
Today, I’ll finish this post with a discussion of another special education issue that taught me how important the scope and public nature of a conflict is in securing a workable agreement.
In the early 80’s, I was working for MPAS at the Caro State Hospital as a regional advocate for the six counties in Michigan’s Thumb. About half my work involved representing students and families in special education disagreements.
One case involved a student in late elementary school who had a learning disability that involved a problem with something called internal language. Kids begin to use language to organize their behavior according to the demands of the outside world just as soon as they have language. But using that language to organize their internal behavior is something that starts at age 4-5 and continues into adulthood. An example of a learning difficulty caused by developmental delay in internalizing language would be a student who does well at math until story problems are introduced. Because story problems don’t map the procedure for a solution the way math problems do, the student has to manipulate the story to tease out the solution procedure, using internal language in support of that manipulation.
Although supporting the development of internalized language had a basis in neuropsychology at that time, there was no such concept in educational psychology or the standard view of learning disabilities in special education. This meant that it would be very difficult, perhaps impossible, to win support services for this purpose for this student using the typical advocacy approach.
In particular, the local district was worried about setting a precedent that would trigger a “woodwork” effect of thousands of parents storming the district with torches and pitchforks demanding therapy for a delay in internalizing language. For another, it wasn’t clear to the district just how much it would cost or what specialty could actually provide that support.
What to do?
The district suggested using a method in the rules called arbitration instead of the traditional hearing. I looked into it, but couldn’t find that it had ever been used in Michigan (it may well be that our use was the only one). In terms of this student’s situation, arbitration had many advantages. For one, it was much less expensive and much shorter than a hearing. Also, the arbitration decision did not set a precedent that the district would be required to consider for every student in special education. These two realities of arbitration undermined almost completely the system concerns that the school had.
From my point of view, it simplified my argument that the support should be provided to this specific student. I could use the general special education principle that the school needed to provide supports to enable the student to benefit from education, an assessment that said internalizing language was the educational problem, and an easy to understand rationale for the actual support. All of this was straightforward. And the decision of the process was very agreeable to all.
In Michigan, arbitration has been replaced by dispute resolution using client-centered mediation, a much better system for a lot of reasons than arbitration. But the lessons I learned about negotiation have stuck with me through the decades.
Next Post: Invisible Purpose and the Uses of Misdirection