Nolan Martin :
Hello and welcome to the NEGOTIATEx podcast. I am your co-host and co- founder Nolan Martin. With me as always, co-host, co-founder, Aram Donigian. Aram, let’s kick this one off.
Aram Donigian :
Sounds good. So, Nolan, back in 2012, I was getting ready to return for my third deployment to Afghanistan. And I had a nice email come in, Oh, maybe a month or so before I was heading out from a gentleman in Rome, asking me if on my way back to the U. S. from Afghanistan, what I’d like to drop off in Rome for a couple of days, enjoy some of the finer things that Italy has to offer.
And oh, by the way, maybe lead a session on negotiation. And that was our guest today, who I’ve now known for well over a decade, which is pretty amazing. Colonel Retired Mark Graham teaches leadership negotiation and conflict resolution courses at the University of Maryland and participates in executive training programs at the School of Public Policy.
Mark has 26 years of teaching experience at the graduate and undergraduate levels. Mark served in the United States Army for 27 years in the U.S. Army Judge Advocate General’s Corps, serving at all levels and at numerous locations across the globe. Mark, sir, thank you for joining us today.
Mark Graham :
It’s my pleasure. Thanks, Aram.
AD :
So, Mark, could you share a little bit, just a brief overview of your career in the U.S. Army? And how it influences your teaching today.
From High School Debater To Army JAG: Lessons Learned In Conflict Resolution [02:04]
MG :
If I may, I know this is kind of maybe off the question, but I’ve been working with communications theory and conflict since I was in high school, I was on the debate team at high school and I was also a student government.
And so, we had an election. My school had 3,000 students and I lost the election to, I guess what they called the old days, hippies by 60 votes. And, the young man who was president got himself fired for stealing money from the candy store. And the next thing you know, I’m in the office of the principal helping him solve problems.
And it was just amazing how things happened, but he noticed that I was interested in going to the University of Pittsburgh. And he says, what do you want to study? I said, I want to be a debater. So he got a senatorial scholarship to pay my way, four years of college. And then eventually another three years of law school.
Well, sometimes you make your own luck, but I think what happened was the fact that I was on the debate team, prominent student government, I played basketball, but I was, you know, I had like 3,000 hours of practice and played eight minutes, I could see where my bread was buttered, so to speak. So when I got to Pitt, I was on the debate team, junior varsity debate team, and I was also a speech major and that time they had a rhetoric and public address in addition to communications.
So while I was debating for a couple of years and also studying, I had some grounding in theory of conflict and argument. It was pretty intense. In fact, our evidence professor was considered a world renowned Newman, an expert in evidence. In fact, he challenged one of the debate teams. I won’t say what’s school at a national tournament. We’re falsifying evidence cart to, you make their points. I mean, it was, it was astounding because the team was so good. They didn’t have any business making up facts, but there, you know, through that process, if you guys ever debated, you realize you got to usher the facts. You have to play both sides, affirmative and negative.
And you have to really understand what you’re talking about. And that’s where I first started kind of the journey. I guess you would say that where it’s kind of trite toward looking at argument, looking at, as Aristotle would say, ushering the available means of persuasion. But when I was debating in college, there were a couple of crackpot ideas out there, and we used to laugh at them, you know, affirmative teams would come in and say, okay, guess what?
We can get oil out of shale in Canada. Of course, back in 1972, that was crazy. And now they do it all the time. How about fracking? The one team brought up a fracking thing. They were arguing that fracking was possible in 1972. And of course the national topic was that we should be energy independent. And we of course never got there, but it was a start.
So you’re dealing with that kind of stuff and testing those ideas, it’s a really amazing experience. Now, when I was looking for a job, I was offered jobs with good companies, but then I wanted to go to law school. So my ex-wife and I decided we’d go to law school and that’s where I went to Pitt and I always wanted to be an officer like my dad, he was in the Air Force.
So I applied to the JAG recruiter. And, the Air Force Jag told me the truth. The Army recruiter lied to me. And so I joined the Army, of course, but the Army guys promised me court. Instead, they sent me to Fort Raleigh, Kansas in the 1st Infantry Division, which was the best thing that happened to me because we had, that was before drug testing and I had like 60 cases at a time I had to work with, but not mentioning, I went through legal assistance claims and also administrative law before I got to be a trial counsel, just like the Air Force guy said I would do, but it’s okay. And we eventually got there. Since then, my career has been mostly overseas and Washington.
And my war, so to speak, was the Balkans. And this is where my JAG experience really paid off when it came to actually dealing with people. But I also had been stationed in Turkey, especially in Germany and Japan. And each one of those places, my specialties in international operational law and environmental law, I got a master’s degree in that, really paid off. But throughout it all, I really have to be honest with you, we didn’t have any kind of training programs for lawyers about negotiations. It was just presumed that we knew how to do that. And it was curious that we were always called upon to go handle the tough questions or at least go with the commanders.
So it’s, you know, Aram and Nolan, you probably had the same experience. Sometimes it’s just there to keep them from talking too much, but it definitely amazing that we really didn’t have any training programs for lawyers to negotiate. Can you imagine? I mean, they trusted the legal method, you know, issue, facts, law, apply the law, come up with a resolution that usually serves you well, but you’d have to do that for every issue.
And for the young attorneys, especially you had to encourage them to do the preparation because you really weren’t trained to do that. Of course, today, you know, I’m sure we have teaching guides for lawyers, I hope we do. But we were out there doing training on a thing called garden plot. And then of course, preparation for Bosnia. We went to the field five times. And a key feature of the Bosnia preparation for us was to sit down and pretend like we were meeting with Bosnians, Serbs and Srpska and negotiating things.
There was no book. There was no playbook. There was no way to do it. You just kind of hoped you got the issues straight and you didn’t offend the other parties. So eventually we practiced and practiced that we got pretty good at it. So we got there. It was pretty much the first couple of weeks telling them, you know, quit putting your weapons out of your storage, quit flying your helicopters.
And we would send, quit shaking down people on the road. I mean, it’s all in the treaty. That was the first week was just enforcement. That’s why I was so happy to have NATO and the Russians together. So negotiations were swift at that point, but once it got more sophisticated, we really had to sit down and deal with them.
Now, for me, I didn’t start teaching. I’ve actually been teaching since 1984. And I was stationed in Turkey and yeah, I had actually, yeah, so much fun things to do. I had no money, two kids, you know, wife couldn’t work. There’s only Turks could work over there. And, so I went and talked to the Air Force guys.
I said, Hey, I heard you guys are teaching for Maryland. I saw it’s great. Get paid for doing nothing except for talking about what you know already. I said, this is great. I’m going to go do that. So I go to the Maryland center and they said, sorry, we don’t have any openings. And so we don’t have any openings.
So all the Air Force guys are teaching the classes. So I had to wait for them to leave. And, they gave me a speech class based on my background. So I’m teaching, probably speaking the people where English may have been their third language. And that was some kind of challenge for sure. But at the same thing, you know, preparation, gather the facts, find what the issues are.
And prepare in advance. In fact, my favorite first exercise is I would have the students describe how to get to their house because you couldn’t read the signs. It was pretty hilarious, especially in Japan when I did it. So, I mean, you got to come in and figure out creative ways to teach. But in the meantime, the military guys, we weren’t teaching them any of this kind of stuff.
And that’s why I figured out. You know, on my own, I figured out that you had to give them clear guidance about what conditions and standards we’re willing to accept. And when I saw the article about the West Point project, I was astounded. I said, well, the Army’s finally figured this out, that we do need basic negotiation and conflict training as part of leadership, especially we’re deployed in areas where we’re doing, either what do you call it, [inaudible], if you will.
And so that’s why I jumped on chances. Maybe cut off air, but the past to come and speak to the school. So he spoke to all my classes and to the whole school one night about his experiences and the importance of negotiation. And it’s really interesting before I met him, some aid workers who were friends of my wife’s, who’s now deceased, told me the military guys have no skills in negotiating or talking. All they do is whip out their guns and say, take it or leave it.
And of course I argued with them. Then I realized that no, they were right. So it’s a skill that the modern Army, you have to have because commanders, whether they like it or not, they bring their contract officer, their PAO and their lawyer when they’re on the first plane coming into a deployment area.
And so all of those three, you need to have the skills to do negotiations with clear guidance, conditions and standards and communication skills commiserate with your audience. I mean, Aram, I was just floored when he said he had to teach these guys to take their sunglasses off. You know, I mean, okay, the sun is bright, but when you’re talking to a respectable person, you need to take the glasses off or say, you know, I go by the book too, I like the Bible.
So, all these things are things that you could learn and then use. But if you’re not trained or given a chance to do it, then, it doesn’t mean anything. Yeah, even with drug testing went away, we still had problems sometimes with simple negotiations. Yeah. And, when drug testing went away, then all the drug stuff went out post. So you had to learn to negotiate with local prosecutors and that kind of thing.
And again, I had no training. That I could tell, you know, formal training, I didn’t get formal training and negotiations until I just do an environmental law. And I was in about 13 years, 14 years by then. So I hate to be negative, but that’s how my Army experiences for me and to influence my teaching, because I want the students to leave the class with some paradigm, context, approach, theory, to assist them in any problem they have where they need to resolve a conflict. And so the Army drove me that direction.
AD :
Mark, I was just going to say. I think it would land the same for me as well, which is even as late as the early days in Iraq and Afghanistan, the recognition that we just assumed that anyone could do this. And there’s actually a real value in, you know, professionalized training and practice.
NM :
Mark, I was hoping you can share an example of a challenging negotiation you faced during the military service and how’d you handle it?
Navigating Complex Military Claims And Crisis Management [11:59]
MG :
I’ll tell you, I came up with two examples, if I may, one is kind of mundane, but you asked like a civilian aspect to it, but I was working at Fort Lee, Virginia, which is now called Greg Adams.
And while I was there, I was a claims officer. And so the first thing I did, I went in and I said, how much money did you guys collect from insurance companies. And I was a law clerk at a plaintiff’s firm when I was in law school, and they said, well, we collect 200. I said, what? You’re saying that Fort Lee only spent 200 on medical care for soldiers?
And they said, well, no, we spent hundreds of thousands. And I said, well, how are we going to get that money? So I taught the legal clerk to write a letter to the insurance companies demanding payment for the medical bills of the soldier. Now, 99 percent of the time that worked out just fine. But the other 1 percent of the time was when a soldier was represented by a lawyer who didn’t want to take the cut.
The Medical Care Recovery Act allows the United States to take the whole amount of the medical we pay for a soldier. And a lot of people don’t know that certainly the lawyers didn’t care because they would write their agreements like, a soldier didn’t have any duty or the government nobody had any duty to pay the government for the medical expenses.
So I can tell you that I talked to 7 attorneys and none of them, absolutely none of them would give up their share of the fee to help the soldier get more money. Meaning, the government would take our cut and they would want it to be taken out of the soldier’s recovery. Of course, that may be pretty angry because you think these guys would at least do something.
You’ll throw 5%, maybe 10%. I had nastier fights over this than I did with the death penalty at Fort Riley. When these lawyers get energized with money, it’s tough. And again, I’m not blaming them. Here’s some smart alec from Fort Greg Adams calling them up and demanding that they share part of the recovery with the U.S.government.
I was clearly at an impasse. And so you have the standard impasse procedures. You sit down and think about, of course, I know now the theory, but at the time I didn’t know this. I said, what are my, my levers? What are the causes of this conflict? Well, it’s money. And it’s power, because I don’t have the power to make these guys do what they want, unless I’m willing to go to court.
Well, on the side, I was building relationships with the U.S. attorney and the magistrate to actually throw people in jail. There was so much drug trouble on this base, and it was an open post at the time, that we negotiated with the commander to close the post at night, or at least restrict access. And we got together with the magistrate, the U.S. attorney, and the marshals to arrest people and send them to jail. That’s pretty remarkable for a magistrate court program.
And of course, I was there doing that, ushering our interest. Again, I didn’t use those kind of words, but I said, look, we got to clean up this post. And if we put a couple of guys in jail, these guys won’t come on our post anymore.
So finally they listen. And we used to do the sentencing at the beginning of the hearing so everybody would see it. Then the line was like three miles long to pay their tickets because they didn’t want to go to jail like the guys who are drug dealers and that kind of thing. And again, all we could do is get them for misdemeanor, but at least we made the effort to coordinate, negotiate, and set up a system where we could prosecute and literally march out the door and hand-iron people who caused trouble on our post.
Now out of that experience, the reason I mentioned that is that you can build relationships, which is very important to negotiating theory. That there was no way those guys are going to listen to me just like the magistrate, they would say, who are you? We’re not trying to cut a deal. But once they saw people being carded out, it was now Mr. Graham, sir, please, can I have this?
You know, it was amazing how when you applied power and had a relationship, you can actually get things done. Now, not everybody’s that lucky. But once the U S attorney made one phone call to these seven attorneys, it was all over.
Some of them were willing to give more than 33% out of their cut, but it wasn’t until we put the touch on them, like I say, in the Army, because sometimes you just got to flex, you know, before you can do it because I knew that with this impasse, there was no way I was going to get a dime out of these guys.
And of course I couldn’t go to court. So you see how negotiations in one place can build. Well, I mean, you guys see it, but you know, your audience might understand that if you build a solid relationship across the board, you can get things done in other areas that I never thought that collecting money for claims would be somehow related to throwing drug dealers in jail, but it was because they recognized that Graham and my boss, Colonel Cooper weren’t taking any crap and we were changing things down at Fort Lee/Greg Adams.
But you can see, I was just frustrated beyond belief. We were so lucky collecting money. I collected 400,000 with these letters, but these lawyers would not budge without somebody putting a touch on them. That was a challenging negotiation. Yeah. So, and by the way, the secretary of defense can waive this recovery act stuff.
And so I wouldn’t tell them that, they still wouldn’t care. They said, you ain’t going to go to Washington to waive this. You know, of course that’s exactly what happened. You know, they got a cut, the U. S. attorney got the waiver. You know, when you put a U. S. attorney letter on top of your packet going to Washington, it’s going to make a big difference, especially someone from Richmond.
The other example, if I may, is, more of a, we have power and interest in stakeholders, but Bosnia. You may have recalled that secretary Brown’s plane crashed into the mountain. It was pretty morbid business. I mean, Nolan looks like a young man. He may be too young to remember that.
NM :
Yes, my dad was deployed in the Bosnia conflict, but I was just a child. I think we were in Germany at the time, so.
MG :
Roger that.
AD :
He was a wee babe. Can you imagine Nolan as a wee baby?
MG :
He’s still young. Yeah. But you could see, I mean, the issue, if I may say it in a bald way is what to do with the Croatian bodies. That was the issue. I can give you a little background. There was a horrible storm that night and the runway just barely passed the Air Force standards for a legitimate runway.
It was too short. And so it ran right along a giant kind of, not giant, but a mountain, which was actually part of the Dayton Peace Accords, where the Bosniaks had to get off that hill and quit shelling the airport. So at the time of the crash, they had just moved out and it was pouring down rain and the pilot missed the beacon and then hit the back end of the plane into the mountain, he missed the whole runway.
Now, of course it tore the front of the plane off, only one person survived for a short while was the airman, she was in the last row. But everybody else died instantly and there was conspiracy theories later that they were all shot, but it’s not true. The shrapnel from the plane just spun in the air and cut everybody up.
So it’s pretty nasty site. So, of course we are deployed from Hungary. I was the lawyer for the support team. They just grabbed us as you’re going. We didn’t get there for a day. The Green Beret guy, the special forces guy was madder than hell, the general. He wanted to know where we were. Well, our plane was held up too, just like the plane crash.
Well, it turns out when they got to the hill, the Croatian Army and police were going through the luggage and actually taking stuff and, you know, at the point of a gun, they made him leave. But you can imagine we had to discuss this, the security at the crash site. The Dayton Accord made it very clear that we were in charge.
And this was one negotiation that was pretty brief. Tretuzovan’s brother was head of interior, and he’s yelling in my face, and I said, Sir, I’m sorry, we’re not going to give up our right to guard our NATO persons that are on that crash site. He said, Well, there’s Croatians on there, too. I said, They are also NATO persons, because they’re news people affiliated with our Mission that Clinton sent Brown over to start business interests.
And there were 30 some business people that were killed in addition to the Croatian journalists. So he stormed out of the place. The next thing, you know, the MPs came back and say, Hey, this guy is amazing. What’d you say to him? And so I didn’t say anything. I just told him a condition and standard of legitimacy called the treaty.
So he needs to follow the treaty. And they negotiated a deal where we guarded the top of the hill, and then they guarded the bottom of the hill to keep the journalists out. So they saved face, so we were able to work out an agreement, and of course, I recommend approval to our commander. I think General Eaton was our commander.
You see him on TV from time to time though, standing in man. Then of course the next day, you know, they come in and say, wait a second, you have to pay rent for using our airfield. So he whipped out the date, the cord sat down, calmly explained to him, showed them the Croatian version. We don’t have to pay any blank, blank rent, and we don’t mean to be mean about it, but this airfield belongs to us until we’re done removing the plane and removing our people. Again, no problem.
Then the next one is they come in and told us we had to remove all the landmines. As I mentioned on the top of the hill, all the hill was controlled by Srpska. They had artillery shells down there and shooting on people. Well, when they retreated, or were told to leave, they also booby trapped everything.
And sort of the general, he was a Colonel back then, but the Colonel said that look, we’re not doing that. And my lawyer tells me that I don’t have to, we didn’t. It was the job of the parties to clean up landmines there. So there was another one where I use the standard legitimacy to help me diffuse something, because when you showed it to him in writing, that made a big difference.
Now, the one area they did not give up on was the bodies of their people. So what would you do? You know, again, I didn’t have formal negotiation training, but I know when I teach it now, empathy is really important. You know, our regulations clearly stated that Dover was where all the bodies should go at a crash site on a U S aircraft.
So what do you do if, when they say that, well, of course the medics there, you know, they’re not going to take a chance and make a mistake getting someone to question them because they left the Croatians behind. So they needed some help. So I went in with the head doctor for the government and I said, look, what do you guys want?
They said, we want our bodies back. And I said to both of them, I said, do you think you could identify them if the families went in and looked at it? And they said, yes, we could. Because one of the women had a broach around her neck. And even when you see someone who’s disfigured, you can, from their facial bone structure and face, what’s left of it, you might be able to say.
But still that wasn’t enough. They called Dover, Dover called the head of Armed Forces Institute of Pathology. And he’s in the meeting with President Clinton himself. Clinton said two things. He says he wants all the bodies back before Easter. And two, I don’t mind if the families can identify the Croatians that we leave them there.
We’ll waive whatever we have to waive. And so just me talking to a guy around the table with the Paul Mill officer generated a conversation with the president of the United States. So we could actually listen in and have him decide that, okay, we’ll waive this. I mean, I don’t know if he was allowed to do that, but that was Clinton.
He would do what he thought was the best. And it was a good result because the family went in and guess what? Their family went in and they identified all three bodies. One with the locket, two by what was left of the face, and third by the body shape of the person. And some associated effects that were found nearer.
That’s why it was so crucial to get those characters off the hill. So you gotta admit, I mean, then of course you have to come up with a way to do this. And they negotiated, I wasn’t involved with this, but our team was involved with the negotiation with three countries for a dignified repatriation of the remains.
And so when the C-17s landed, the US flag coffins went in and then they peeled off the Croatian. But the head of Bosnia was there, the head of Croatia was there. And the leader of Srpska, who turned out to be a war criminal, you know, they were out on the runway with our ambassador seeing off these people. But again, you talk about a difficult, I mean, I was sweating gumballs by the time they committed, demanded their bodies.
And luckily I had enough sense not to be a [inaudible], but to try to work it. But now I would know what to do. I’d sit down and say, okay, what are your interests? Well, we were interested in burying our own people. What are our interests? Our interest is having a complete medical and an accident investigation.
So you go talk to the head of the investigation and ask him, do you have enough? And he said, yes, we do. How about the cause of the crash? Now that was not public knowledge at the time. And then three, was the idea that what do you do with the bodies? In fact, the medics can run it in later after we turn the bodies, the return to Croatia saying they forgot to do something.
They forgot to take fluid out of the lungs and the heart of the three Croatians. They hadn’t got to that point. So they’re asking me, what should I do? And I said, well, I don’t think this will be a long negotiation. Go talk to the corner who we satisfied earlier, his interest and ask him that we want to do that.
And apparently he went like that. No problem. And he’d even go in with them. He trusted us so much that he allowed them to remove the fluids that they needed for their study back at Dover. So again, I’m not saying I saved the day, but I was involved with other sharp people getting all this stuff done.
And then you just create some creativity and like what we call an interest based negotiation, options that are going to meet the needs and interests of everyone. And so it worked out to be really difficult and challenging negotiation. And those other smaller ones were actually assisted because our people wrote a good treaty that we could use to defend our interests. But again, you know, we could have waived some of that stuff, but I was going to make them pay for it on the way.
NM :
Hey everyone, Nolan here. I have to jump in and end today’s podcast for part A of this show. Be sure to rate, review, and subscribe to NEGOTIATEx podcast, if you haven’t already. And also join us next week for part B of this awesome interview.
