FOOTNOTE 1: Mediator Comments on Beginning Mediation

Dick Salem


 [Full Interview] [Topic Top]

Typically it starts on the phone and at a certain point it continues on-site if the case warrants it. After talking to the person or people involved in the matter and making some preliminary judgements, you might give them some initial advice. I'd suggest you talk to the assistant principal and call me back. If he is unaware that this is happening in the classroom and this teacher is doing this to your child, here are some things you might do to move this forward. Here are some people locally you might call, someone we know we'd refer them to. Or depending on the state of the matter I might call the assistant principal, or the school superintendent. Very often when talking to establishment officials I would start at the top with my Justice Department credentials to get their attention and worry them a bit. They seldom want the Justice Department to come into their school, police department or community. Many people with grievances do, but no public official wants anyone from the Justice Department coming in. So we don't say this is a Community Relations Service mediator governed by a confidentially clause. We say, "this is the Justice Department." So, we would have to be careful in determining who to call first and let them know we are coming in. We wouldn't start with the assistant principal. We might call the principal or the superintendent of schools and say we've heard there is a problem at the George Washington School, and there have been some protests, we're wondering if we can be of any help. We offer our services and ask if we can be of assistance and try to get some information. I guess everybody would approach it differently, but we try to create some rapport so this person will be willing to talk to you. You begin to build your information base, your assessment about what's happening. Also during this time, you try to build some trust and get some indication whether they would be receptive to your coming in. Or you might just say, "we're coming in." You might say, "we're coming in for this matter," or you might say, "I'm going to be in the area anyway, I'd like to drop by and chat with you about it when I'm in your city."

 

Leo Cardenas


 [Full Interview] [Topic Top]

Did you make the decision about who to call first? Did you always try to call the minority group first or the authorities first? Did you have a rule about that?

Answer:
It would depend on our knowledge of the disputants. In a lot of cases, we know someone and so we would call whoever we knew in that particular community, and sometimes, in fact before we even contacted them, we would contact people to get a background at the local level.

Question:
Would you always contact both parties, or all parties involved before you decided to go on-site?

Answer:
Always contact both parties, yes.

Bob Hughes


 [Full Interview] [Topic Top]

Were there any other reasons why you wouldn't inform a party other than just time constraints?

Answer:
Well, there are plenty of communities where we would not know who to contact, smaller rural areas. We may not know anybody there, or have a contact. So you just show up. You try to contact somebody who does know the community, or that had been through there, or the next community over. "Can you put me in touch with somebody there?" But, again, you don't always have the luxury of making that many phone calls. And at some point, you've got to go, and you will end up going unannounced. And in rural areas, that's not unusual. Sometimes that works against you, but other times, people are glad to see you.

Question:
So who are you looking for once you get there? Who are you looking for first?

Answer:
The people that call me, usually, just to get that out of the way. I usually try to respond to whoever calls and try to make contact with them first.

Question:
And the cases where you are not called and don't have a contact, who are you looking for and what's your procedure at that point?

Answer:
Well, I call somebody that I have a relationship within the next community over, or somebody who works that area.

Manuel Salinas


 [Full Interview] [Topic Top]

A lot of times when I go into a situation, even though it was the reverse here, I'd rather talk to the system first, the police, the city, the schools, or whatever, than talk to the community. Because they're they ones that ultimately can make the change. So if you deal with them first, and they get comfortable with you, or at least they know you're there, even though they're not comfortable with you, at least then you've opened the door somewhat, so that the community then can come in. Then you talk with the community, if you have the community clamor first, the door may not open as easily. So I'd rather go the other way. I think the city fathers, police, educators, they want to know you're there. And they want to know who you are and what you do. So once you open that door, you're better able then to get to the problem and work with the community. And the community won't condemn you for meeting with them first. I never had been condemned for it. But in Salt Lake City, I went to the police, but then I immediately went to the other gentleman, without a lot of dialogue with the police department. Maybe I should have proceeded as I normally do, but I thought it was too hostile. I thought I'd better get to that gentleman first.

Nancy Ferrell


 [Full Interview] [Topic Top]

Part of our approach was that you go to the highest level for entry and so I needed to talk to the President to find out if he was open to us going in.

 

Julian Klugman


 [Full Interview] [Topic Top]

Question:
Let's back up, who did you call initially when you said, "Hey this sounds like a good idea." Did you call the school system, can you walk us through this?

Answer:
You have to call the superintendent first. We had program specialists, Bill Briggs was an education specialist, so he got permission through the superintendent of schools. The power is at the top, but the principal runs the school, so you really need both. I knew a black woman on the school board. When there's a poor school system, poor quality police department, who gets the bottom of the ladder, the people with the problems who need help. Anyway, we got them to say "yes," and the kids were just amazed by us because we took them seriously. First of all, they have to agree to some things before you do this. I have prerequisites, I won't do it unless it's okay from the top and the principal goes with it. I won't do it unless there's an agreement up front that there will be a student group formed which will meet on a regular basis. We're going to have a work plan. Also subsequently we learned some other things. I won't go in and do it if there is a weak principal because it's a complete waste of time. If the principal's the problem, forget it, because this is hard to do.

Question:
What about teacher involvement?

Answer:
We tried that. Teacher involvement, parent involvement. We tried that, it's too ambitious. You're talking about fights between students. That's what you focus on. But subsequently when I got into workshops for the Association of California School Administrators, we divided it other ways; we did it by school systems. I would get 5 to 10 school systems together because it was too slow to do it by school. In L.A., they set up sub districts, like 16 schools. We took one sub- district out in the Valley, 16 schools that were going through a lot of racial change. In fact it wasn't just racial, it was ethnic changes as well. They were getting the Russians; they were getting the Iranians. So we split different ways. I would end up with school superintendents; somebody else ended up with the principals. We did try to do it with parents, except we couldn't get the Hispanic parents to participate. We tried to do it through the Catholic church. We spent an incredible amount of time trying to get the service employees involved. That first school system, we tried to get everybody involved. (I remember, with the Mexican kids, I used Ada Montare.)

Nancy Ferrell


 [Full Interview] [Topic Top]

Question:
Do you have any standard approaches of who you talk to first?

Answer:
Obviously if somebody initiated the contact, that would be easy. If it was a news report or some other way that I found out about it, I would try to contact the aggrieved group first to try to get some read on what the level of violence and tension is. Also, how quickly do we need to respond?


FOOTNOTE 2: Mediator Comments on Who Should Be Involved in Mediation

 

Bob Ensley


 [Full Interview] [Topic Top]

First of all, you have to get credible people. You call so-and-so, they'll tell you there are certain people in every community that both black and white feel comfortable talking to. That's the only way to do it because you cannot do it yourself; you don't live there. You're not familiar with anyone there. You have to get people that are respected, who are honest. You let that rest with the community, don't try to take on that burden yourself, because you can't win.

 

Silke Hansen


 [Full Interview] [Topic Top]

Question:
How do you determine who exactly to talk to?

Answer:
If it's something that was just in the paper, and I don't know anybody there, I would start by trying to locate the organization and/or any names that were mentioned in the paper. I would try to find a way of contacting them and talking to them. If there are no organization names or specific individuals to start with, then I'd try to find out which minority organizations exist in the community in question. Then I would figure out whether I knew anyone in the community who might be able to get me connected to the actual "players". I still would prefer to start with the community perspective because that is where the conflict seems to exist and then move on to the institution. In each case, I would ask the people that I talk to, "Who else would I contact to get more information, to get a broader perspective on this?"

 

Nancy Ferrell


 [Full Interview] [Topic Top]

Question:
Did you sometimes use outside community resources to help resolve conflict?

Answer:
Yeah, again it would always depend on how the case played itself out. The situation in the small community where the Iranian students were coming into the community college and they were really being discriminated against by the community, is an example. The incident occurred because some high school students had been driving along and used a baseball bat on an Iranian student as he was walking. That was the triggering incident that got our attention and brought us into it. I went to the police department and it was a "boys will be boys” kind of thing. I went to the school board, and the principal, and it was, "Well, they're dating some of the girls,” and the boys were mad, and that's what happens in small towns. I wasn't getting any empathy. They wouldn't generate any understanding from the Iranian students’ perspective at all. I talked with the community college about their guardian responsibility to these students. There really wasn't any strong support there because they saw their funding and support coming from the community at large, which was an Anglo-white farming community. I was just pretty much saying to myself, "This is going to have to take some legal action or the students are going to have to do something in terms of protecting themselves from the legal perspective. The community's not open and they're not going to listen to the interests of these Iranian students.” I started thinking about that small rural community and they would have 200 Iranian students come in there. It had become a place they would come for two years to get their English up to a level where they could be admitted to the University of Tulsa, in the Petroleum and Engineering school. So it was a pipeline for that community college. I thought about how much money had to be coming into that community because of those students and what impact would this have on the community if those two hundred students a year went away? The network that got them there could certainly stop them and pretty quickly cut that off. And if they kept treating them as badly as they were, and there was physical danger, they'd leave. So I decided to go to the chamber of commerce and talk to them about, "What is the impact on this community economically, about having these students, and what's gonna be the impact if the student's are gone?" And so they got involved, and of course, that meant the business leadership got involved and things began to change then. We began to see some empathy and some understanding that we need to do something different. But, again, I appealed to their self-interest. I think in most instances, that's where you have to start with people and try to figure out what is in it for them. What's it gonna cost them if this continues, and if I point that out, then they're more likely to listen. In another situation, there were some educational issues for migrant workers. And I learned through just talking with some people, listening to people, that the great operator was really the power broker in the community. And I had never sat down and talked with him directly, so I made an appointment, went in and spent a couple of hours just talking to him about what we were doing and what our interests were, and what would happen in the community in the long term if these kids don't ever get an education. It was almost just honoring him by the appointment. He opened the doors, and things started moving then. So, that's part of the dance. If you go in and you're not ready to move wherever the thing's going, then you're gonna miss something good. Q - Now he didn't feel threatened by you? A - No. He didn't project that. He probably felt he was finally honored. Q - And he wasn't being personally accused? A - No. But everyone knew that as soon as he said to the school board, "Let's go for it," it would happen. As a mediator, you could go in there and try to strong-arm, but we didn't have any strong-arm to go with, except if this is not resolved, then the agencies who do enforce may come in. But it was persuasion and working from a perspective of good will, and to appeal to people's higher being. And 90% of the time, people will respond to that. And that's what this man did. He made a call to the president of the school board and all of a sudden the school board president was open to some ideas. And he hadn't been. I'm not sure that he had talked to that operator. He just historically thought he knew what he wanted, and he wasn't going to violate that. That's the nuance and that's the dance. It’s following those trails and seeing where they go. It’s finding out who the power structures are and where the doors get opened, and then appealing to their higher being. And most of them will respond to that. Anybody who's self-interest is greed or power, is not going to respond. And that's when you have to know to hand it over to whoever the law enforcement people are and let go of it. But most often, when you give people an opportunity, they'll respond.

Silke Hansen


 [Full Interview] [Topic Top]

But before school opened we did a lot of work with community leaders, including clergy, with the school system, and police department, trying to do some contingency planning. We assumed that there would be demonstrations, but we wanted them to remain peaceful. So we planned what these groups would do in case of an emergency. Who was going to be the liaison between school and police for instance? We also started looking for ways to form multiracial student councils so that, as these new groups of students were brought together, that they would have a mechanism for being able to work together. Unfortunately, in South Boston, that was next to impossible, because white kids and certainly their parents were very clear that they didn't want to do anything to try to make this successful.

Martin Walsh


 [Full Interview] [Topic Top]

So, it's who is taking the leadership; who are the real players in these incidents. Sometimes we go by who comes forward and is willing to address the problem. I remember one of the problems with which I was involved in my hometown of Wellesley, MA. One of the cases there was with Dee Brown, a basketball player with the Boston Celtics. He was stopped as the alleged bank robber who robbed a bank in Wellesley the day before. It led to a celebrated case in the paper. There was a lot of publicity. Into that process came a public meeting which the selectmen held in Wellesley at which the issue of the police treatment of him was discussed. The police were defending their procedures. But the major issue that came out of the meeting was that other members of the African-American community came forward and said that they had been stopped driving through Wellesley. The issue was racial profiling even though we didn't call it that then. There was a real problem. From that meeting, one leader reached out and helped convene a group of African Americans, some who testified. They became the community group. Was everyone reached out to? No, not necessarily. But, I always think you want someone who might be on the negotiating team. If you want to make some progress, I think the best way is through the mediation process and getting the community involved. But sometimes you don't know whether that group is representative of the community. There was no election and there was no formal group formed. I suggested that they call themselves something, so they called themselves the Wellesley African-American Committee (WAAC). They dealt with a number of problems, not only with the police but a number of other issues like schools in Wellesley.

Angel Alderete


 [Full Interview] [Topic Top]

It started off again by knowing someone in the city of Pomona, and asking him who the people might be that I ought to contact. He was willing to sort of lead the interface for me, and so that's how we got in contact with the Latino community and with the African American community. With official folks. It isn't hard with official folks. You just show up and introduce yourself, and they'll sit down and talk to you. But the community folk, they don't care who you are. I mean, they want you to prove yourself.

Efrain Martinez


 [Full Interview] [Topic Top]

What I'm looking for is consistent names. If four of these people tell me I ought to talk to John Doe, I'll make sure I talk to John Doe. Now once I get to see them, what do I see them for? Essentially, I want to know what they know about the situation.

Nancy Ferrell


 [Full Interview] [Topic Top]

Question:
How do you find somebody to call?

Answer:
I don't know, it's kind of like being a detective I guess. You check the paper and you call groups that you're aware of. Sometimes you call the newspaper and find out if they have any names. A lot of times, in the minority community, the church leadership will know somebody that's involved. So you just have to ask around the first six months or a year and after that, I've created this file of people in every community. So I may even call one community and say, "Do you know anyone in this community?" Usually they do. But you begin to have a network. Once you've established those trust relationships and those networks within a territory you can do something with a phone call because you've already established the trust, you've already coached them through some conflicts before. You really do multiply your efforts when you create those networks and alliances with trusting people. I began to have people from the establishment call me, and that was a real benchmark. The establishment people were saying, "I think we've really done some things here which might be a problem. We're not sure where to go with it, could you help us out?" You just create a network like you would with anything else.

Nancy Ferrell


 [Full Interview] [Topic Top]

Question:
Did you always know all of the parties before you went down?

Answer:
Yes, if at all possible. You might not be able to get in touch with everybody, but the goal would be to get in touch with all of them before you got there. Whoever I talked to first, I would tell them that I'm going to be talking to the other party today. "Before I leave, I'll be talking to these people. Is there anyone else you think I should talk to?" That did two things. First, it broadened the network for talking to people, it began to identify some of those leaders. Second, it began to establish the trust that I was in fact going to talk to the mayor, the police chief, LULAC, or this person who's in charge of the demonstration. Everybody knew I wasn't trying to hide anything. Usually the next person is the chief of police who will say, "Why did you talk to them before you came to talk to me?" I would tell him I made the appointment with them first and I didn't try to go into that anymore. I knew there was always that feeling of, "Who did you talk to first?" One would always say, "They're just trying to con you." So I just say, "Everyone's trying to con me. It's part of the deal. Everybody tells the story from their perspective." I understand that it's part of the dance. "I understand that's a concern of yours." I'm trying to minimize any impact it has in a negative way. "I think we can be helpful."


FOOTNOTE 3: Mediator Comments on Reluctant Parties

Wallace Warfield


 [Full Interview] [Topic Top]

Question:
So when you were making that initial telephone assessment as to whether CRS should get involved, was one of your criteria whether or not you thought they’d be amenable to talks, or was that something that was left for later?

Answer:
Well, you’d get some of that. If you got into a conversation with people on the phone, you might ask, "Is this something that you think you’d like to get resolved? What do you see happening? What do you want to do with this?” You may not ask them about whether or not they want to get it resolved; you might ask, "What do you see as an outcome? What would you like to see happen in this particular situation?” Depending upon what they would say, that would give you some clues as to their willingness to sit down and talk.

Question:
And if you had the feeling that they probably wouldn’t, would that be a reason for you not to get involved?

Answer:
Not necessarily. It certainly would make your job a lot harder, but what CRS would do is that they would change the nature of the intervention. So if the intervention was initially thought of as being a conciliation or a mediation that would bring both sides together, and one side or the other (particularly the establishment side) decided that they didn’t want that to happen, you could still go in, but you wouldn’t be doing that; you’d be doing something else. Maybe trying to reduce the level of violence, or doing some kind of evaluative work with the minority.......it tended to get CRS people in trouble when they did that, because the other side always knew when you were in town, and you’d have to sort of answer to the question: "I thought we told you we weren’t interested.” "Yeah, but I’m here doing something else.” And you don’t want to push it to the point where you’re saying, "I’m the federal government, and I can go anywhere I want.” You don’t want to do that.

Martin Walsh


 [Full Interview] [Topic Top]

What do you do when you can't break that barrier and someone says they don't want you in this case, or one of the parties says we just don't want to deal with you." Have you had that experience?

Answer:
I think the hardest thing is less that they are verbalizing that they don't want you in and more the other battle where you can see that they don't want you in and they want to put you off. I think that's the more frequent thing. They will say, "We can handle this," or, "It was an isolated incident." The techniques that I always use are that I don't like to allow them to make a decision for us. I don't want to give them the opportunity of "Yes, you can come in," or "No, you can't come in." I try to put it in a way, "Related to this incident, I'm going to be in your community talking to some people and I'd like to meet with you." So basically, it's not, "Well I can refuse you," as much as you don't give them an opportunity to say "No." But then in the meetings with them, often their reluctance level goes up and down the scale. We try to get as much movement as we can from them and that's why I say in some situations we'll get a conciliation approach rather than a mediation approach.

Stephen Thom


 [Full Interview] [Topic Top]

Do you ever have access problems getting into a case, the parties don't want you there?

Answer:
Yeah, I've got one I just blew. It wasn't necessarily me, but it was blown. I've gone out to a situation where there was a series of altercations at school. Many of the African- American parents were concerned that the school was not properly reprimanding both racial parties. The school where students had been arrested did seem very biased. Even the incident that provoked the violence had overtones of racial bias for one side over another. So, we went out and heard the complainant side and met with all the parents of the children involved. Then we went and met with the institution, and told them what we felt, that mediation would be a viable way to get through this. The institution absolutely refused because they'd had learned of a pending million dollar suit against them. I said, that doesn't pre-empt mediation. You may have this suit, but there are some things that I think we can still negotiate. The institution said to me, straight out, that they totally distrust the parties, and anything in mediation would not be kept confidential and would be used in discovery for the lawsuit. There would be no way that they were going to participate in mediation. What do you do with that?

Question:
What did you do with it?

Answer:
Well what I did was, I said, "If there is this level of distrust, I'll see you either now or I will see you later. Because regardless of what you do, whether you go to court and win or lose, the problem you have at your school site and the relationship you have with the African-American community is not going to be resolved by the courts, so if you feel that the parties cannot be trusted, we can very well wait until that lawsuit it over. But you know, you're not going to solve the problem until you sit down and get some agreement, as to what and how you properly carry out your policies and processes with all students. Until that's worked out, you're going to have to sit down at the table at some point, sooner or later. It's your call. I can't tell you that you have to sit down now."I thoroughly believe that they can wait out the legal process, but the law does not put the community back together. The law does not give the parties a process to really put to rest the anxiety and issues that divide them. So I figure, I will be there sooner or later.

Edward Howden


 [Full Interview] [Topic Top]

Question:
Was there a time when one party to a conflict asked you to intervene but the other side didn't want you to come in?

Answer:
Oh, sure, on conciliation as well as mediation cases, though it's not even a prospect for mediation unless both parties show some interest or willingness. Let me back up and amend that. On conciliation cases, CRS didn't have to stay out of a community just because one party didn't want us to come in. If we felt there was a tension scene that needed attention, we would do some kind of advance assessment over the phone by talking to as many people as possible to get some feel for the situation. And if that assessment indicated that we really ought to make more effort on-site, the regional director or whoever else was supervising the scene would say "go," and we would go.

Question:
How would you deal with the party that didn't want you there?

Answer:
I don't recall being refused entrance, but there must have been a few times somebody said no dice, "I really don't want to spend any time with you." Mostly I remember that there would be reluctance about taking any other step beyond us getting in the door. The plus factor in being in the Department of Justice was that it helps you get in the door with a sheriff or a police chief who might otherwise have said, "Who are you?" So we would get in, whether some of the steps we wanted to have taken would happen or not. A bit of persuasion sometimes helps, and of course, if the situation was pretty volatile, most conscientious and intelligent officials are going to want all the help they can get. They're going to want something defused if possible. They may not have, at the outset, any great interest in rectifying some of the causes of the action, but CRS would attempt to help them to see some of those underlying factors and hopefully to address them. In fact we would have no hesitation in pointing out, "Look you know, you can't just paper this over. We're not just here to quiet the situation, we hope that you have an interest in preventing and correcting the problem or some of the sources of the problems."

Will Reed


 [Full Interview] [Topic Top]

Can you recall any specific time when one of the parties or neither of the parties wanted you to get involved?

Answer:
Oh that happened a lot.

Question:
And how did you handle that situation?

Answer:
Well, sometimes, you go to the other party and deal with that party and work with them until the other party decides to come around. Sometimes they will eventually come around and say, "Okay, this guy's already working with you on this, and he evidently must be on your side," or something like that. But the only thing you can really do is demonstrate to them, the best you can, that you are basically neutral, as neutral as you can be. And it usually just comes together. Sometimes they'll walk away and say, "We don't want to be bothered with this individual." I don't think there was ever a time where any of us, and I say "us" in this situation, because this is kind of universal, it dealt with everybody, for the most part, we never concened ourselves with people who didn't want us.

Edward Howden


 [Full Interview] [Topic Top]

Question:
What did you do to get the reluctant party involved?

Answer:
A couple or three visits and lengthy discussions.


FOOTNOTE 4: Mediator Comments on Options

Silke Hansen


 [Full Interview] [Topic Top]

Question:
Is there anything else that you try to do in the initial meeting besides finding out what their view of the issue is?

Answer:
To some extent, I am already trying to lay the ground work for potential mediation. Now of course, the majority of the cases do not end up going to mediation! But let me give you an example. This could be any community. I go into the minority community and let's say that they are concerned about a racist school superintendent. So I will go in and say, "What's the problem?" They say, "We've got a racist superintendent." "What do you want to do?" I'll ask. "We want to get rid of him." That is their number one demand, get rid of the superintendent. So I go on. "Okay. So if you get rid of the superintendent, then what?" "Well," they say, "we will get a superintendent who isn't racist." "Fine," I reply, "but who hired the superintendent?" "The school board." "Okay. Who is going to hire the next superintendent?" "The school board." Now we're getting deeper into the issue. "Well, how can you be sure that you are not going to get another racist?" "We'll tell them that we don't want a racist." "But how do you know that he is not a racist?" I'll ask. "What are the kinds of things that this superintendent is doing that let you know that he or she is racist? What are you going to tell the board that will convince them so that they will not hire another racist?" "Okay," they'll say, changing their approach a bit, "we'll say we need somebody who hires more minority staff." Okay. Now we've gotten somewhere. So then I start writing on my flip chart if there is one. "Okay, so part of the problem is the hiring policies here," I'll say. "What else?" "Well, look at the discipline here. They are expelling and suspending far more minority kids than white kids." "Okay, so the discipline problem is an issue." I continue writing on the chart. By having that kind of discussion I am now helping the community to focus not on the individual, but on the existing policies that need to be changed. Because the reality is that even if they get a different superintendent, if he or she does the exact same thing as the one they have now, they haven't gotten anywhere. On the other hand, if the current superintendent can be persuaded to do things differently, the problems could be resolved. Now, of course, I'm not at that point yet with the group. But if the superintendent would change some behaviors if he would do certain things differently then he wouldn't be seen as a racist that needs to be replaced. Yet initially, the only option that the community sees is, "Get rid of the racist bastard and get somebody better." So when you start taking about what somebody better would look like and what the differences would be, we now begin to get some issues that I can then take to the superintendent. I can't just go and say, "They think you're a racist," because, obviously, the superintendent is not going to agree that he is a racist in most cases. But often, after some conversation, the superintendent does agree that his job would be easier if he had a better relationship with the community. And even though this is just a small, minute trouble-making part of the community it always is [in the superintendent's view] he begins to realize that his job would be easier if his relationship with them was better. So if I can show him that I can maybe improve relations with that community, and he is willing to talk about some of the hiring policies and the disciplining procedures, then I have something I can work with. If we can talk about those issues, rather than whether or not he is a racist even though I haven't talked about mediation a whole lot yet I have begun to lay the groundwork for identifying what some of the actual interests are. This shows that the frustration isn't so much the one person as it is with what's happening to the children of that community. And by helping them to define that, I am also helping them to address it.


FOOTNOTE 5: Mediator Comments on Structuring Mediation

Bob Ensley


 [Full Interview] [Topic Top]

You mentioned a checklist -- is this a mental checklist that you have?

Answer:
A mental checklist, yes.

Question:
And what's on this checklist?

Answer:
Who's to be involved, certain time limits, what goals and objectives did they set that were different than what you had originally thought of terms of. Who else they are involving and any money that is involved. Also, what additional role is there for me? What will I be able to do? Who am I going to assist? Am I going to assist a Human Relations Council, or am I going to assist the people, or do I assist them together? It's much easier if we can work harmoniously with all the groups as they come together, than to assist one over the other, because it may appear as if we're taking a position with the Human Relations Commission and have forgotten about them being able to represent themselves and speak for themselves

 

How did you design a response plan?

 

 

Bob Ensley


 [Full Interview] [Topic Top]

I would go over to the hospital, police department, sheriff's department, the schools, and all of these different places because it's important to know the geographical area that they're talking about. It was very important for me to know where everything in town was located, so that way I didn't have to ride with the chief or the mayor. I could get by on my own so if they said, "Meet me at so-and-so cafeteria at such- and-such a place," or "Meet me at the school or at the police department or city hall," I would pretty much know where all these places were located sometimes.

Bob Ensley


 [Full Interview] [Topic Top]

You mentioned a checklist -- is this a mental checklist that you have?

Answer:
A mental checklist, yes.

Question:
And what's on this checklist?

Answer:
Who's to be involved, certain time limits, what goals and objectives did they set that were different than what you had originally thought of terms of. Who else they are involving and any money that is involved. Also, what additional role is there for me? What will I be able to do? Who am I going to assist? Am I going to assist a Human Relations Council, or am I going to assist the people, or do I assist them together? It's much easier if we can work harmoniously with all the groups as they come together, than to assist one over the other, because it may appear as if we're taking a position with the Human Relations Commission and have forgotten about them being able to represent themselves and speak for themselves.

Ernest Jones


 [Full Interview] [Topic Top]

Question:
At that point did you have a goal in mind of what you wanted to happen out of this?

Answer:
Yeah. The goal was to be prepared to respond to conflict between Olympic people and the community that it impacted, and secondarily the people who were coming to the Olympics from all over the world. We wanted to be prepared to respond to any conflicts that took place amongst the people that were coming to attend the Olympics, not just the ones that live here. But it was basically to be able to just provide conciliation services. We also wanted to have input into the planning process, and particularly in the contingency planning process where you do get this kind of stuff.

Question:
Now did you solicit the help of the key parties in developing your goals, or was that something CRS did?

Answer:
No.

Question:
Okay.

Answer:
So it got to a point where we were done with the assessment and I kind of determined a plan of action. Here's what CRS plugs into this whole thing, here's what CRS ought to be prepared to do, and here's what it's going to take to do that. We were going to utilize all the regional staff and I think at that time there were six of us. The Olympics go on 14-18 hours a day every day for 14 days, and do so at multiple sites (e.g., in Atlanta there were events taking place all the way in Savannah, Georgia, which is a five hour drive up in the mountains) and there were also various venues that were anywhere from 10 to 50 miles out of Atlanta. So it wasn't like you were just going into one area and dealing with the situation. We had a multitude of venues, and sites. Atlanta was the key one, but the other ones had the potential for conflict between people, so we had to be open to that. So we needed a lot people to come in. As I recall I think the total was sixteen people in all. The basic design was that all the people would come in for the fourteen days straight, but then there would be breaks provided, based on how things were working. When things were slow we had the luxury of taking a break or something. I had two person teams. We had sixteen people so I think it broke down to two eight-person teams and actually I was monitoring the whole thing. And it was set up so that we had all the venue sites covered when we needed to have them covered. It was set up so that we would have all the time periods of each date covered; it was just a matter of logistically assigning people to the right place at the right time. And then we also had it built in that people were available to move should something come up in some place external to the place they were positioned at any point in time. People were mobile.

Question:
Were you looking for certain things?

Answer:
Well what we were trying to do is monitor the whole process. The people that I brought in were all experienced staff. But I just lost my train of thought.

Question:
You were telling me what things you were looking for.

Answer:
We knew for example, that the venues in downtown Atlanta were pushing right up against, and actually into some of the lower income areas in Atlanta where there's a high density of people living. And because of the Olympics, the flow of traffic was changed so you couldn't drive down the same street that you always drove down and some streets were closed at certain times, and others were blocked off completely. There was just a lot of disruption of the normal flow of movement within the city. And so you've got these, things going on, but you have all these factors that come together. And you've got law enforcement everywhere and you've got it from all kinds of places. I mean not only are they physically all over the place, but they are from at all parts of the country and all different levels of government. The one thing that they've got in common is that they are all law enforcement people concerned with security. You know they don't want anybody to get hurt. And of course you know we've got that bomb thing here and that's why they are out there. But in the process of doing their job they were injuring other people's ability to do things. So we knew there were going to be flash points where people were going to get hot and there was going to be confrontation. Once people get into a confrontation the next thing you know you've got a crowd and the potential is there for violence. We couldn't stop that, but in the preplanning and the contingency plan we talked about a bunch of these things, made suggestions and recommendations. But when we were actually on-site the idea was to be there and to be ready to move because you can't be everywhere at once and you can't identify all of them so you just have to be prepared to go. I mean you might actually see something and respond to it right away but what we did was we would get notified that there was a potential problem so someone would go over there and start to deal with it. And I'll talk to you about how that activity went. So you know people were out there and basically doing what CRS does.

Question:
Were you talking to people this whole time, or were you just sort of walking around patrolling?

Answer:
We were in constant contact with the law. For example you would be walking in this one area, say around the Omni where there were a lot of events going on, and there were people all over the place on the streets and everything else. We would just touch base with the law enforcement people on the scene. Ideally we would try to touch base with whoever was the commander for that particular sector, but we would also talk to the officers that were just standing on the street corner. "Hey what's going on? How are things going?" And that sort of thing. We would talk to people just on more of a friendly basis then anything else because as soon as you start questioning somebody who wasn't officially there they're going to wonder why you're asking this and that can create a problem. So there's only in terms of "Hi, how are you?" type stuff. The rest of it was in keeping in touch with local law enforcement people that were on site. There was a main command post and we had somebody in there 24 hours a day. And everything that happened flowed through the command post and every action that was taken flowed out of the command post. So we sat there with everybody else and we knew almost instantaneously what was going on. I equipped everybody with cell phones. We didn't try to use walkie-talkies or anything because there were a zillion of them around. So, we were in instant communication amongst ourselves. There was one large board that was a running incident schedule that logged the time, the location, and what happened. It was constantly changing, growing, but it told everybody in there what was going on and if there was something that was a potential problem, it told whoever was in charge of the command post. The commander would make a verbal announcement to everybody in there about what was going on and give all the latest information and that kind of thing. So we were constantly in touch with our command post and we knew what was going on all over the place because everything flowed into there. So we would use that as a guide of where we would go and what we would do. And we would also feed information into that process if we saw something happening or if we thought something needed to be addressed. We would call our person at the command post who would talk to the person he needed to talk to and there would be an instantaneous response. That was a real neat set up because it worked really well and if you consider the number of people involved it was amazing that it did. But it worked really well in terms of information moving around. So that's kind of how we came up with where we went. And there were a few, but not many, but a few announced events. Nothing pops to mind immediately, but there were times where an organization or a group said they were going to protest at such and such a site because so and so is there. Most of those protests were political in nature and they were foreign, outside of the United States, where people would protest because a particular country was there. But we were always there to deal with the potential that comes from any planned demonstration. No matter how well it's planned the potential of conflict exists so we would cover all of those. We would always have someone present. Since there are so many people involved in those things, we tried to the best of our ability to get to know some of the protestors and other groups that we knew were going to be out there. We would identify their leadership and talk to them in terms of working as a liaison and that kind of stuff.

Werner Petterson


 [Full Interview] [Topic Top]

Question:
Would you talk about how you designed a plan to handle this case? What did you do at what point? Did it work as you had planned?

Answer:
That's a good question. Once I had the parties' acceptance to enter into mediation, in that case hearing from them in these separate meetings and then later jointly, it was clear that we were kind of locked into boilerplate solutions, which is not acceptable to either side. Once I saw that, then I began to talk with people about what some other solutions might be. My approach to mediation is I feel some responsibility as a mediator to be part of finding solutions. I think some would say, no it's really the burden of the parties, but I think at times a mediator has to come up with some ideas to help flush out possibilities. In fact in this situation later on when we were close to finishing the case one of the attorneys before the plaintiffs said that one of the things that they were never sure of was when I would make suggestions, were they coming from the community, maybe they were coming from the other side? As a mediator making a suggestion, I don't mean to cloud or muddy the waters by one side wondering about whether or not what's being suggested is something the other side wants.

Question:
In your mind are these solutions or suggestions different from goals?

Answer:
Well, early on we tried to set goals. To me it was always like finding a common interest so I guess the common interest then becomes your goal. Finding the solutions to those common goals, that's where you're going to deal with a lot of work. Usually a goal is a common interest or can be understood or agreed to. It's the process of how you get to the common interest which really becomes a problem. In this case it was trying to find a plan that would demonstrate that the schools within the city had been integrated. The solution came from an organization within the community. They came up with a plan for how you could determine whether or not there had been a change in the population and the teaching staff of the school district. So the difference was that it shifted away from the school district and it gave the school district more flexibility instead of having to implement specific plans or specific programs. It gave them flexibility on a school-by-school basis. Students ended up selecting some of the schools, and these became special kinds of schools, like magnet schools. Initially they were fighting sides, we're going to chop the school district up this was and that way. We're going to send these kids from this place over to that place. At that point magnet schools had a good track record. By using this system of determining numbers it was given some flexibility but at the same time the school district would be held to some marker on how they were going to bring change and for some reason that solution was what changed the discussion.

Question:
Let me back up a second, how did you determine what your role would be and how was that influenced by the parties?

Answer:
This case was I don't know how many years old. It had been hanging around the courts probably for 12 years or more so there was a lot of history there. Things going nowhere and people fighting back-and-forth in the courts about it and nothing happening. But I think the four people that came together in this negotiating team, two from the plaintiffs and two from the defendants, just clicked and there was not a lot of mistrust. I think they were really sincerely interested in working with each other and felt that they were all sincerely committed to finding a solution.

Question:
And actually that's my next question, how important was it for you to gain the trust of the parties?

Answer:
Oh well, you know probably in almost all cases there's an outsider and you're always faced with that because in most cases people don't know you. At this particular time, and at any time over the history of CRS being a representative of the Justice Department, you were always suspect by somebody and it would depend on the community, depend on the times that would shift, who was particularly suspicious about who you were. The way that you overcome that is just by sitting down and talking with people and demonstrating to them you're committed, you're involved in helping them find a solution. You can be answering questions people have concerns about, if they have any, what they see as leniency on one side or the other. If you try to clear that up they will come to trust you, but it takes some work and preparation. I think over time as they see that you're there to be of help, there are no suspicions about where your commitments are. It's only over a period of time that as people get to know you, those sorts of suspicions get to be set aside.

Question:
What were some specific trust- building strategies or activities that you used when either race, ethnicity, gender, or CRS affiliation was an issue?

Answer:
I would find someone from whatever the community it might be and in this particular situation it was in the black and the white community. I knew that if I would involve the community in this process it would be helpful to have people within the community who knew me, to introduce me to people and become a bridge and to be a patron of what was happening. And in that particular case there was a prominent State Legislator that I had known for many years and he was well loved in the community and became my bridge into that community. There were parts of the community that I needed to have some access to. It was also true on the other side that we were going to want the business community leaders in particular cities to be committed because in this particular city nothing happened unless a "blue book business" leader was being alarmed. So again, it was through someone I had met in the city, in another case, that became the bridge into that organization where I could go over there and speak and talk about what I was trying to do. I could win their support that if we could reach an agreement it was going to be something the business community was going to support.

Question:
In this particular case, this wasn't a community that you lived in. How did you cultivate those networks of people that you could call?

Answer:
I had other cases in this community before so I knew individuals here and there, and that's one of the real things. In that case it was a blessing because so many times you may go into a city and you have no context at all. That really makes it even more difficult.

Question:
In those instances where you don't have any networks or any people to intervene for you how do you build networks, or find them? How do you identify the resources?

Answer:
Well, I think mediation is a lot of work. I think you have to be willing to just talk to a lot of people and as you do, you're not only introducing yourself to people in the community, but you're receiving information that might help find a solution. And so it's just a lot of work and talking to people. I think by helping parts of the community become involved in finding solutions, sometimes what CRS has done is understanding the problem. For some reason the parties never seem to come together, or when they do come together it never goes anywhere and CRS, when it works well, helps things come together and if you can do that, then that in itself gives you a new standing and gives you a credibility that you are able to do something. You were able to bring talks together and just by being able to do that, it adds something to your name. Then you have to continue and show the parties that you're committed to helping them find a solution.

Ozell Sutton


 [Full Interview] [Topic Top]

Question:
Could you talk a little bit about how you prepared for your on-site intervention when you first got to town.

Answer:
You work on the basic knowledge you have as to what you do when conflict is ongoing. It is pretty given, for experienced people, as to what you do when you go into a city that's already in conflict. The first thing to do is to try to get a handle on the nature of the conflict, who's causing the conflict, who could bring resolution to the conflict and then you start there. You start with the people who are raising the issues, at least I do. Some people start by going to officials. I never do that, because I want to know, in the eyes of those who are raising the issue, what they consider the problems to be. So when I go to the mayor, when I go to the chief of police, I have a fix on what the problem is, as seen by those who are raising the issue.

Will Reed


 [Full Interview] [Topic Top]

Answer:
We don't say, "Figure out what your goals are." Flip that over and say, "Identify what the issues are." And that's the next phase. There was a guy who wanted to know how I got involved in the Justice Department. And I told him, "I'm not the issue." You have to identify the issues. In the meantime, you're developing relationships.

Silke Hansen


 [Full Interview] [Topic Top]

Now, I'm one of those people who starts off every case initially by saying to myself, "Okay, how can I bring this to mediation?" It helps me from day one, minute one to have an agenda in my mind. As I'm working toward that, it may become clear fairly quickly that the case is not going to go to mediation, and that's fine. But if I start out thinking that it might go to mediation, I have a perspective to work from when I approach the parties. If that doesn't work, then I ask myself, "Is there some training we can do? What other kinds of assistance can we provide? Are there some documents I can give them, or maybe I can just facilitate some meetings?" or whatever. But usually, unless I am asked specifically to come in for some other purpose, I'll assume we're trying to initiate mediation. Remember the case I was talking about earlier, about tax day? In that case I was asked to come to facilitate the meeting. I ended up facilitating another one similar to that about a month later in the same community. And there were some great things that came out of that, so it was a very rewarding and beneficial event. But that would be an example of where I didn't attempt to go toward mediation, even though there were some pretty good outcomes that arose from that particular situation.

Werner Petterson


 [Full Interview] [Topic Top]

Question:
Would you talk about how you designed a plan to handle this case? What did you do at what point? Did it work as you had planned?

Answer:
That's a good question. Once I had the parties' acceptance to enter into mediation, in that case hearing from them in these separate meetings and then later jointly, it was clear that we were kind of locked into boilerplate solutions, which is not acceptable to either side. Once I saw that, then I began to talk with people about what some other solutions might be. My approach to mediation is I feel some responsibility as a mediator to be part of finding solutions. I think some would say, no it's really the burden of the parties, but I think at times a mediator has to come up with some ideas to help flush out possibilities. In fact in this situation later on when we were close to finishing the case one of the attorneys before the plaintiffs said that one of the things that they were never sure of was when I would make suggestions, were they coming from the community, maybe they were coming from the other side? As a mediator making a suggestion, I don't mean to cloud or muddy the waters by one side wondering about whether or not what's being suggested is something the other side wants.

Bob Hughes


 [Full Interview] [Topic Top]

Did you always have a plan before you went on-site, or did you develop a plan or a goal after you arrived on-site?

Answer:
Usually you have a basic plan of assessments that you start with, the people who have the problem, and confirm what they are concerned about. And that's the beginning of that assessment, answering those basic questions that I had mentioned. This of course relates to both conciliation and mediation. Again, you're seeking to identify the issues and who the party's are, and what would it take to resolve the issues in their eyes. And getting that, you formulate your own conclusions and your own strategy, and then ultimately your recommendations.

Question:
Do the parties have an influence on that strategy?

Answer:
Oh yeah. What you feel like would work might be effective.

Wallace Warfield


 [Full Interview] [Topic Top]

Question:
So once you got on-site, you did your assessment. How did you establish what your plan of attack – well, terrible phrase.....

Answer:
Freudian. (laughter)

Question:
Yeah – what your plan was going to be?

Answer:
Well, I don’t know. No CRS person is a tabula rasa. You only have kind of an imprint, and part of that comes from having done a number of cases like this in the past. Whatever it is that you’re going to do, you’ve probably done, unless you’re a complete novice. You’ve done something like that in the past, and you already have in your mind – you’ve got a kind of a tableau. And then the question is, you want to see, "Well, does this fit?” If it fits, you might decide to simply use it. If it doesn’t fit, then the question is, how are you going to try to force it to fit? And many CRS people try to do exactly that: They try to force the square peg into the proverbial round hole. It wouldn’t fit, but if you read the reports, they could make fit it anyway! When I was Associate Director of Field Coordination, I spent much of my time reading field reports, but I would also sometimes have independent flows of information. So, I’m reading this report from the beginning of an entry to its closure, a reporting out of the successful concluding of this case, and I said, "Is this person in the same city that....somebody else was?” But in a normative way, what you try to do is go through a series of adjustments: "It looks like this, but no it doesn’t. It doesn’t look like that; so what is it? Something else?” And so there’s this degree of interpretation and categorization that you had to sort of try to do. "How can I then change what I do so that it meets this particular need?” This is a process – and I should know – that can be expanded over some time, and it never stops. So an assessment is ongoing. Sometimes, in a kind of showman-like practice in the moment, you kind of have to make those adjustments right in the middle of a situation. Everybody has to do that; I don’t think that’s different from what anybody else does.


FOOTNOTE 6: Mediator Comments on Power Relationships in Mediation

Ernest Jones


 [Full Interview] [Topic Top]

Question:
I appreciate the effort. You mentioned something a few minutes ago about leveling the playing field and you can talk more generally now. You don't have to stick with the Olympic case. How did you handle situations or how did you level an unequal playing field?

Answer:
I don't necessarily view that as my role every time. There may be times when I don't consider that to be a significant factor but if I want to try and level it and I think that's something that a mediator should be doing in this particular case, then there's a number of ways you can do that. One of the ways you can do just that is you can communicate nonverbally your support for the person who is on the low end of the playing field. There are a number of little tricks you or things that you can do like the use of body language to send a message that will indicate something to someone. It creates the appearance that I'm on this person's side and I'm here to help them, so you're not just dealing with that guy now your dealing with maybe two.

Question:
For example, non-verbal?

Answer:
Oh, moving physically closer to the person, having eye contact with them but not with the other person. Not that I don't want to look at them, not that I'm afraid to look at them because they are not important enough to look at. Anytime you start doing these body language things, you have to know what the hell you're doing. You have to be able to do this, but you learn to do that. By using pitch and inflection, you know sort of like talking more calmly and rationally and an even tone to the person you're trying to help. More aggressive and louder with the person, you are trying not to help. You know, there are all kinds of things you can do by using body language, and even by using tonality and inflection and those kinds of things. Another thing you can do in terms of leveling the playing field is to do some caucusing. You have to be very careful here that you don't screw up the neutrality of the way you're doing this, but what you do is try and direct the person who hasn't made it up to the level of the field, try to get them thinking in terms of how they can improve their position. You might recommend that they read something or they do something, or that they check into something. You don't tell them to do it, you just say this is something you might want to think about. It's usually best to do that by throwing out something else also, here's another option that you might want to consider. So, you're not telling them here's one thing to consider, you're telling them, here's 2 or 3 things to consider, so that there's options on the table. But you use the caucus period to point that person in the direction that's going to help them. When you caucus with the other side you know you're doing something that's not the exact opposite but what you do is you try to get them to lighten up a little bit. Or you can let them know in a subtle or maybe not so subtle ways that you know what's going on, and as a mediator because you're neutral you may not be able to do anything about it directly but I want you to know that I know kind of thing. The playing field doesn't necessarily have to be completely level, it's just the system, the process works better when it's level, and generally speaking I feel better about what's going on when it's relatively level. When it's relatively level then if somebody hurts themselves in the process, it doesn't bother me as much because they were both about the same level, and if they screwed up, I can't do everything all the time, but it should be a level playing field.

Question:
So you said that when you see a large discrepancy in the power you feel the need to sort of level the field, as level as it can be, that's relatively speaking, but what are those specific things that you're looking for that tells you that this group is not on the same level?

Answer:
Well, I don't know what to say here, as reluctant as I might be to make assumptions, I think you can generally assume a community group that's not really associated with a national organization. They're working at a hindrance when they're dealing with officials who have tax dollars, and all the time in the world because that's their job. The officials have access to data, and very likely although not exclusively, but very likely they are better educated. They just gain common sense, it just kind of tells you that officials are in a better position than our community leaders. Now if you're talking about a NAACP even though that chapter might be unsophisticated. When you're coming out of rural Arkansas, you know, they're not that well educated, they just don't have the sophistication level, because they've never had the opportunity that the mayor, the chief of police and all these people have. But what they do have is their organization, so they can bring in the legal defense plan. Even though that young group there is unsophisticated and may not be at the same level, they have a support mechanism they can bring people that were not on their level of playing field, and bring them up to power.

Question:
So in those cases did you sit back and let the community group access their resources and work with the flow?

Answer:
I may be different than a lot of people, but here is how I view some of the stuff. I take a very clear view that if you're going to raise an issue, then you need to know what you're talking about. If all you have is a high school education and the mayor's got a law degree, that doesn't necessarily make the playing field uneven. But, if you're a community organization or a community group, if you're going to raise an issue then you better have done your homework. My job as a mediator is not to do your homework, or do your work for you. My role is very simple, I'm just here to help you try and figure out what the answer is, I'm not going to come up with the answer, I'm just going to help you figure out how to do it. I expect if people want to raise an issue, then they're prepared to raise it and defend it. So, generally speaking I don't feel a great need to level the playing field. When I feel the need to level the playing field is when clearly I'll just stick with the example of obsidian community organizations. Clearly the city is acting in appropriate ways, that's not my job, my job is not to let that guide me because that takes me out of my usual stance, but I'm not stupid, I can see the writing on the piece of paper.

Question:
QUESTION UNKNOWN

Answer:
Because I know that that's happened and I want to maintain my neutrality. How do I do that? Well, the way I do that is by very indirectly coming to assistance of the community group to bring them up to where the playing field is level. I see that as a role of a mediator. I think we should have as level a playing field as you can get. Everybody should be starting at about the same place. So when I see that that needs to take place and I think that's a legitimate function. I mean it's an "iffy" kind of thing, cause you're still trying to maintain that neutrality and see if everybody's helping somebody else. There are times when it's just got to be done.

Wallace Warfield


 [Full Interview] [Topic Top]

Question:
So how do you deal with the notion that -- again, this is another thing taken out of the literature -- that in order to be successful in mediation, the parties have to be of relatively equal power. So what’s commonly done is mediators will work to empower the low-power group, and I’m hearing you say that you do that to a degree, but that can then cause problems with the other side.

Answer:
Well, it happens in the very beginning. Typically the way that happens in CRS and most other kinds of mediation where there’s this huge dis-equilibrium of power – and the same thing can happen in organizations, for example – is that you do your power-balancing in the beginning of the process. Let’s sort of walk through a typical process: you come into a community, you meet with the leadership in the community, then you meet with the so-called establishment side, the local officials, the business people, and the first thing they say to you is, "So who have you met with on the community side?” and so you say, "Well, I’ve met with so and so." They say, "Ah. A, B, and C is fine, but D and E.....those guys or those people -- known troublemakers, can’t have them involved in the process.” So right from the very beginning, there’s an attempt, even before you’ve gotten into the formal sessions, to discredit people who, in fact, could be the people who could redress the balance of power in a setting, because they know they don’t want those people there. They don’t want the balance of power. So I think the job of the conciliator or the intervener, just to think of a more neutral term, speaking of neutrality, is to convince the powers-that-be that if they really want this to be a successful outcome, without defining what success is at this point -- because you don’t want to do that -- then they need to be here. "You need to allow us to do our work, to make sure that the discussions stay on an even keel. We can’t promise you that there won’t be some explosions from time to time, but you know, you’re going to have to be prepared to deal with some of this if it happens." So, there was that aspect of it, right from the very beginning. And then, running throughout most interventions, you could say that at the beginning, but there would be these kinds of recidivist fall-backs to the same kind of attempt to slowly disempower people that they didn’t want to be at the table. Either in this particular forum, or others. Something that we don’t give enough credit to in general, is that parties in disputes or conflicts are pretty sophisticated. We think they look only at these particular issues, but in many cases, people in communities are thinking about, "What are the implications of this as an outcome for future relationships?” And read into that, "future power relationships.” So if they’re successful in this issue, we know that coming up next year there’ll be a bond issue about such-and-such. So they’re looking way down the line, in some cases much further than the mediator is. They’re looking at externalities that the mediator is not even seeing. So I think that the mediator then has to be able to constantly work to be able to do that. There are several techniques that the mediator, or the intervener, has with which to empower the low-power party. I think that the idea that CRS came in – if not explicitly, then certainly implicitly – to redress the power was certainly known by everyone. But the very fact that parties were being brought to the table, metaphorically and literally, was in fact a kind of equalizing of the power. Jim Laue had an expression, as a tap-dance around this issue of advocacy, by saying that he was "an advocate for the process”, remember that? Well, if you strip away the veneer, you see what he’s really saying. He’s an advocate for social change. If the process is going to bring about social change, then there’s the connection.....

Question:
How did this play with the white communities? Did it generally work?

Answer:
It depended. It really depended. Then again, in the social science field there’s a tendency to sort of demonize white communities. You know, "They’re all one thing or the other”. Well, the truth of the matter is that so-called white communities are fairly diverse in and of themselves. So the fact that you have a white leadership in a community, probably Republican, is supposed to mean, in the popular conception, that these are people who adhere to all the kinds of things that are an anathema to your perspective. You know, they’re right-wing people, they’re conservatives, they’re against affirmative action, so you just name a litany of things and that’s where they are. Well, if you got into these communities, what you began to discover was that when people live their lives in these communities, they articulate a different kind of perspective. It becomes a matter of, "We have to get through this particular situation.” So in some instances, you find some white leadership adhering to that kind of popular line, but on the other hand, you also find whites who say, "You know, we know this change is coming. It’s going to be inevitable; we have face up to this. We may not like it, but our children are going to grow up in this town, and we need to find a way of dealing with it.” It didn’t necessarily mean that they were ready to give away the proverbial shop; it’s just that these realizations and recognitions were there, and a good intervener would find a way to capitalize on that.

Nancy Ferrell


 [Full Interview] [Topic Top]

Question:
What about in the context of the case? Do you do any training, especially with a minority group, in order to somewhat level the playing field?

Answer:
I would talk to the establishment and the minority group about learning how to clarify issues, and begin to strategize. I'll coach and train them. I'll sit in private with them, in kind of a teaching mode, and explain to them how to respond to a system and get what you need in a productive way. If you're going to do some destructive things, you can do that on your own. If you want to be productive, then I want to help you with that. A lot of the coaching, teaching, and technical assistance was not behind the scenes because I made sure everyone knew I was doing that. It wasn't undercover, I wasn't sneaking around and helping. Some of the establishment people weren't any more sophisticated about the issue than the community groups were, so I'd do the same thing for them. Generally, the issues were being generated out of the community because the establishment says they don't have any problems. The teaching and the coaching on the establishment side was to help them understand the dynamic of perception. I didn't feel like I had to make them fess up and say, "Yeah, we violated this rule," or, "We've not done all we can do." If you have to get them to confess, you're not going to get them to the table. If I could get them to say, "Sure, we could do better," then that's what I was after. My next goal is to help them emphasize and say, "We're not doing that. But, if they believe we're doing it, I understand why they're so frustrated." That was my next indication that we were moving in the right direction.

Question:
Can you verbalize how you moved in that way?

Answer:
It took time establishing that trust relationship. The community would be saying the same thing, "They're not going to be fair or honest. They're not going to deal with us with integrity, they never have." To be able to come to some point and say to the community, "They have assured me that they're coming to the table in good faith. Now I'm going to take them at their word. Are you going to at least give it a shot?" The same thing with the establishment. It was a matter of being able to verbalize for the community at first, this is how they feel. "If that happened to you, how would you feel?" "Well, I'd feel awful. But we didn't do that." "Well, I'm not saying you did. But if they believe you did, they feel that." That worked.

Question:
You're doing this before the group meeting?

Answer:
Yes. Right. One of my decisions about whether they were ready to meet at the table was whether or not I could get any glimmer of empathy from all sides, however many sides there were. If I couldn't get some awareness or sensitivity to other party's position, I was reluctant to go to the table. I might continue shuttling back and forth and come up with some kind of an agreement, but if you can't create empathy, you can't have a relationship. Without that, mediation is not going to work. If there's no reason for us to relate, there's no reason for me to empathize with you.

Silke Hansen


 [Full Interview] [Topic Top]

Question:
Let's talk a little bit more about the issue of power disparity between the parties, and CRS's role as a neutral. Even though you say you are a neutral, you also, in a sense, try to empower the low-power group, do you not? How do you balance that?

Answer:
If you mean how do I justify that, let's start with that piece first. Very easily, because I don't think I can do an effective job of mediating between two parties if there isn't some balance there. So unless I help bring about that balance, mediation won't work. Of course, you can't necessarily assume that because one side is a minority community that it's the powerless community. That's another issue. But let's assume that, in fact, there is a power imbalance. Unless I can help balance that, and empower each party to effectively participate at the mediation table, we're not going to have an effective, successful mediation. So I explain that to the institution and I offer pre- mediation training to both sides. I also use that as a way to help each of the parties identify what their interests and concerns are, and what they hope to get out of this process. Sometimes, that's particularly important for the institution, because they often start out from the perspective of, "Okay, how much do they want, and how much of that are we going to give them?" They rarely think in terms of, "What do we want, and how much of that are we going to get?" The reality is that they usually do want something from the community, so this helps them become aware of that. This is another trust-building mechanism as well because I'm acknowledging that, "You need things too! What is it that you want? What is it that you're looking for?" I want to make sure that both sides are heard and that we can talk about how each side's needs can be met. I also let the institution know that it's in their best interests to have a well-trained, capable party on the other side because it will be easier to deal with and negotiate with them if they are capable. Part of what the institution is afraid of is that they will have a group of ranting, raving maniacs on the other side that they can't communicate with. So part of what I'm providing is some security, some format which is reasonable from their perspective. I may say to the institution, "Now, you understand that party A is angry and they're going to need to express that. But trust me, we're going to get beyond that, and get to problem- solving." So I lay the groundwork for there being some anger. I hate to call it "venting," because to me "venting" sounds too patronizing. I don't want to be allowed an opportunity to vent; I want to be allowed an opportunity to be heard. So, even though the term "venting" might apply, I avoid that word because it does sound patronizing to me. It has undercurrents of, "They're just spouting off, and they really have nothing to say." In most cases they have a lot to say, but they've never been allowed to say it and be heard before.

Angel Alderete


 [Full Interview] [Topic Top]

Answer:
If I observe that one group is not able to negotiate with another group on a particular level, then we try to bring them up to that level. It'll never occur that they'll be on a really level field, but at least they should understand some of the things that might happen and some of the processes that might take place. Also, you talk to them in terms of the potential for the city or official group to try to buy them and not really do anything to fix the problem. For the most part, whenever I got involved with officialdom, I usually felt that's what they were trying to do. They weren't trying to be of any help.

Leo Cardenas


 [Full Interview] [Topic Top]

Question:
You just said something very interesting, "You had to work the ethnicity out of it." How do you do that?

Answer:
Very carefully. First of all, by trying to bring equity to the table in terms of numbers -- numbers of the organizations. And one of the things that happened here and it happened in other cities, is bringing back to the table individuals who did not currently have a title with the organization, but had held a title before and were highly respected. We asked them to come to the table and be sort of senior, elder spokespeople and bring unity, and that worked very well.

Question:
Did you try to get equal numbers of each race, or did you try to do something proportionately?

Answer:
I think proportionate to the organizations who actually signed to be members of the coalition.

Question:
And this was open to anybody who wanted to be included?

Answer:
Correct.

Ozell Sutton


 [Full Interview] [Topic Top]

And the next thing you are interested in establishing among people who before then had no power, you are interested in establishing in them a sense of power is the wrong word, but a sense of ways that they can protect themselves. In other words, you are empowering them. That's what I'm trying to say. And every time you ought to leave them empowered.

Question:
Yes, so you are strengthening their capacity.

Answer:
Oh yes. To deal with that problem, should it occur next week, or next year, or next ten years, that they aren't totally dependent on you, because you may not be in place. That they too can deal with it.

Question:
Hold that place and lets back up to empowerment. What are some techniques that you use to empower community members?

Answer:
Knowledge and know-how-- the ability to assess.

Question:
You taught them that? What did you teach them and how?

Answer:
You teach them how to locate resources. As I say, there are three levels of illiteracy, and only one of them is academic. Another one is systemic. How they use the system. Poor people and unempowered people are unempowered because they don't know how to use the system to their advantage. So they just go back and get mad about that. I have an old saying: Don't get mad, get even. Don't get mad is the same thing a preacher would say, don't curse the darkness, light a candle. And I call myself lighting a candle, teaching them how to utilize the system. The third area for illiteracy is that of race and ethnicity. We are so ignorant as it relates to race and other people beside ourselves. So I call that cultural illiteracy. We are culturally illiterate, we are academically illiterate, we are systematically illiterate, and when you put the three together, you can empower people. Blacks must learn how to solicit others in their fight. See, the question in America now is not just black and white, like it used to be. The Hispanics are coming in large numbers, as are Asians in this region. There is a greatly increased number of Asians in this region. From Cambodia, from Vietnam, and from other parts of the southeast Asia. I work with them and say, you know, "That's the Jewish community in there." The Hispanic community and you should get together. Go call on a leader with the Hispanic community. They have a natural kinship with you and so now they might not be willing to go as far as you are willing to go, because no one is willing to go as far as you're willing to go if it is your problem. So how to mobilize? I deal with black students on college campuses like that. How to be effective when you are a minority. Don't just sit back and say that white folk do this and white folk do that. They impose their decisions on us, get strategically into decision making bodies. Make sure someone from your group is on these bodies. You complain about spending all of the student activity fee and they won't bring anyone in that you want to come in and speak. Don't just sit back and complain, strategically get some of your people on the committee that disperses the money.

Question:
So knowledge of, as well as involvement in the system is important.

Answer:
That's true. It's important to know how to use it. Until you benefit like everyone else. Otherwise the majority uses it to its benefit.

Dick Salem


 [Full Interview] [Topic Top]

Question:
You’ve talked off and on about empowering the low power groups. Are there any other ways that you do that, that you haven’t mentioned already?

Answer:
I think a large part of our work was empowering, even though we’re doing conflict management, even though we’re helping communities find peace. Our mandate is to help communities to resolve problems, differences, and disagreements. The whole thing is empowerment. You’re bringing a group together, you’re helping them find ways to come together. You’re educating, growing on the experience of the mediator on the scene, and educating people as to how you behave to get better results, helping them understand that you can only get so much based on how much power you have. Helping them understand the factors that go beyond "you.” Mediation really was an education process for people at all levels, from the most sophisticated local leadership to grass roots community members who were trying to boost up their organizations and get things. It isn’t always that way; very often the groups that we would work with would be very sophisticated.

Dick Salem


 [Full Interview] [Topic Top]

Question:
Changing gears completely again, we’ve talked on and off about giving technical assistance to parties. You’ve talked quite a bit about what you would do with the minority parties, but did you bring technical assistance for the majority parties, the authority figures?

Answer:
There was less of a need, but yes, we would put them in touch with counterparts and other communities who had experienced the same things. Sometimes you would do that for your own credibility, but sometimes they would have useful advice for their colleagues. Sometimes you would provide a police chief with firearms policies from other cities, sometimes you would bring a consultant to a police department from another city’s police department. That was very popular. I mentioned that I did that at the Minnesota reformatory. I brought in a corrections commissioner from another state. Sometimes we provide training for either party. You’d work with police or you’d help people put training programs together that would bring the minority community into the training process with police.

Question:
And what about technical assistance for the minority community?

Answer:
Sometimes it was advice based on your experience elsewhere, sometimes it was paper based on things they could be doing or things other communities generated elsewhere. Sometimes it was people, bring in a consultant to work with them. Sometimes it was putting them in touch with people from other communities. That was typically what the technical assistance was comprised of. And sometimes training. I guess you could call the types of things you just do in your day-to-day work technical assistance, even though it wouldn’t be labeled that. It’s helping them sort out their organizational matters when you’ve developed a relationship that enables you to do that.

Efrain Martinez


 [Full Interview] [Topic Top]

If it's a minority group that feels disempowered, a lot of times, they themselves will say, "We have no power here except the power of numbers, and we're putting ourselves out there." If nothing else they'll put their bodies out. Others in society may call a person with influence, they can call somebody to help them work things through, they can call a congress person, they can call a city official, they can call a city council member, and they speak on their behalf and the problem gets resolved. But sometimes minorities feel that they don't have those resources or those avenues, so they just put themselves out there. We give them access to those environments where decisions are being made or can be made. Access that they didn't have before. If that's empowerment, I don't know, but we're giving them access, they themselves can then negotiate to resolve the problem. For some reason they may have not been able to do this before.

 


FOOTNOTE 7: Mediator Comments on Deciding Who Should Participate in Mediation

Bob Ensley


 [Full Interview] [Topic Top]

Question:
When you have issues that are so large like racism or class economic issues, how do you incorporate that into the mediation or the resolution of the conflict?

Answer:
Well, the first thing, as you know, is that you've got to get people sitting down and talking. Getting them to the table is one of the most difficult things and it requires some skill. You develop skills by practice, and participation, and involvement in similar situations. You have to get them to realize it's all for the common good. You also have to be sure they have time to devote to the problem. This is awfully agonizing many times and so frustrating. A good deal of inner strength and inner faith is required to continue to work through the processes when they're telling you it's not going to work, that they're not going to change their position, that you're just going to muddy the water, and create some additional problems by getting involved. Don't let them deter you. You've just got to keep on begging them and insisting they've got to meet and sit down and talk. And it's the only way. You can't force them to do it, but you've got to have them realize that it's not going to go away.

Question:
"Them" means who?

Answer:
The groups that are involved, particularly the white power structure. I know the black people that have been coached and instructed to say certain things to me, to make me think things aren't that bad. But it's far greater and much more serious. They don't know that I've already done my homework in many areas and know a lot more about them and how they were elected and how they've been voting on issues and certain things.

Bob Hughes


 [Full Interview] [Topic Top]

My recommendation was four to six representatives would be at the table for each side, no less than four, maybe six or eight would be an ideal number. For the members of your team, you need a chair person, a spokesperson, and somebody to take notes for you. Don't depend on notes from me or the other party, you need to keep your own notes. Also, there needs to be somebody that I can contact readily to notify when meetings will be a link to your team. That's the negotiating team. Observers are there, those who have an interest in what's going on and who need to know because they could have a role in making or breaking the agreement after it's been developed, after the negotiations are over. There may be a need for other persons, or representatives from other entities to have an understanding of what's going on here, because of the potential helpful role they might play later if they have an understanding. Resource people or technical assistance people are examples. In this case, I'm not sure whether there were observers or technical assistance persons, but they probably played both roles, these three outside agencies.

Question:
Did you let them choose who they thought would be best for those roles, or did you make suggestions?

Answer:
I probably would make recommendations. They would tell me, "it would be good if the North West Indian Fishers Commission had somebody here," but I'd try to get them in from the beginning so that nobody's joining in afterwards, which is always destructive to the process.

Question:
Did any of the parties ever want to include someone that you felt would create more tension or wouldn't help resolve the conflict?

Answer:
Not in this particular case, no. Others, yes.

Question:
Did you make an effort to make sure the negotiating team on each side was the same size?

Answer:
No. Who will participate is sorted out at the beginning. If you're willing to come to the table, it's whoever they determine they want to have, and vice versa.

Question:
Do you insist that the same people stay at the table the whole time to prevent changing of the guard?

Answer:
If at all possible. One of the points in the recommendations is giving priority and importance to this, whenever there's a meeting, you will be there. Of course that never is 100%, but I ask them to prioritize participation in this, because it is important.


FOOTNOTE 8: Mediator Comments on the Involvement of Extremists in Mediation

Nancy Ferrell


 [Full Interview] [Topic Top]

Question:
Now you talked yesterday about groups wanting to keep the extremists away from the table. But you disagree and think you really need to get them there?

Answer:
Yeah.

Question:
Revisiting that in light of this conversation, do you want to bring extremists to the table or do you keep it with the moderate group?

Answer:
My first beginning is to bring the extremists there and try to find the leverage point. But if I can't find the leverage point, then they're not going to participate.

Question:
Do they leave on their own?

Answer:
Some. Some of them, you have to say to the group that they represent, "This person obviously is not willing to become a part of the team or part of the solution. They're not prepared to build a response or a resolution. Are you prepared as a group? You all have to decide that. If you are, we will continue. If you're not, then we need to move on to something else." If you could bring them to the table, many of them, you can give the individual a way of seeing themselves as still having honor. You can use them as a decision maker. "We need you here, you're a very influential part of this community. You can make a difference." So you give them honor in this new role and many of them will again rise to that and see their identity shift while still having honor. They may not, and they may have to be left behind. But if you can bring them with you, it's all the better for everybody. Remember that they're still out here agitating the cause. Some people cannot visualize themselves as having any influence or honor outside the role they have. You're not going to get them to negotiate off of that. An example of that is someone who's been an authoritarian in the family. A mother or father. They can't learn that a different way still brings honor. They're too frightened of it and they're too intimidated by the possibility of losing influence and power. You're not going to negotiate honor away from them without replacing it with something that has honor. I think that's something we miss. I think we miss the reality that everyone needs to be honored, and if we don't provide that, then they're going to stay where they are.

 


FOOTNOTE 9: Mediator Comments on Preparing for Intervention

Will Reed


 [Full Interview] [Topic Top]

In some communities, you won't know who the leader may be, especially in minority communities. It's a culture thing; you have to learn something about the culture. You don't barge in there, not having taken those things into consideration.

 

Will Reed


 [Full Interview] [Topic Top]

So you call places like the library and the historical society. You can be talking to somebody who's giving you the information you want, and before you know it, you get another thing that ties in. You want to know about organizations, if there are important organizations in the community. Never mind about the majority community's organizations; you want to know about the minority community's organizations. The majority community's organizations are an open book with the exception of those organizations that are operating clandestinely (e.g., KKK); you already know what the power structure is. All you have to do is identify the founders of the town and some of the important people -- University officials, industrialists, and people that are leaders and historical enthusiasts. You identify the power structure, and that's not hard to do, but you also want to dig deep into the community. Now, why do you do that? You do that because you want to know if you're getting credible information from the people who are in the community. You want to be able to do that.

 

Nancy Ferrell


 [Full Interview] [Topic Top]

Question:
Did you do anything else to prepare before you went?

Answer:
It depended on the case. Sometimes it would be a housing issue, and I wasn't that familiar with the housing laws at the time. So I would need to research that. School district policy I would sometimes try to look at. I would often ask an institution for copies of some of their policies and procedures. Then I could find out if what the community perceived about the institution was real or perceived. Was this true that they don't have a grievance procedure, or is it that they have a grievance procedure, but it's not effective? Or, do they have an effective grievance procedure, but they don't implement it? It's hard to know how to help if you don't know what's in place. In a lot of the police departments I worked with, I was able to get them to do a written brochure that outlined how to complement or grieve a police action. That was a big step. So it was written and the police officers were handing them out. If you want to comment or if you have a grievance against a police officer, these are the procedures to do that. Again, we honored the interests of the police department. I made it clear that the community needs to be as aggressive in commending police officers as they were in complaining about them. That was part of my sense of balance. I had to honor both. The community had as much responsibility for one as the other. And the department had as much responsibility to respond back to the community.

Silke Hansen


 [Full Interview] [Topic Top]

How did you decide how to prepare for this particular case? How did you come up with your game plan, so to speak? Is it something that's standard with each case that comes to your attention?

Answer:
Typically, when I approach a new mediation case, before I even bring the parties together, I try to find out what the specific needs and interests of each party are, what is it that they hope to get out of this, and why. This way, I have some sense of where the common denominators are and where we're going to have some problems before we actually bring them together. So I do a lot of ground work with the parties before I ever get them to the table. I'm not necessarily referring to this particular case, but I don't like bringing parties to the table without knowing what's going to happen. I hate surprises. So if I don't think that there's at least some area where they're going to be able to reach some agreement, or some understanding, I typically keep them apart. If anything, I do shuttle diplomacy because I don't want this first experience of actually eyeballing each other to be one of further conflict and disappointment and failure.

Bob Ensley


 [Full Interview] [Topic Top]

Would you walk us through how you assessed? What were you looking for? Did you call people in advance? Just tell me all the steps that you can think of.

Answer:
When I first went into Washington, NC, following SCLC's request, I had never been to Washington, NC in my life. It is a beautiful revolutionary town. There were houses built during that time. It has a beautiful river front. I was simply amazed at the beauty of it. Then I start inquiring. The first thing you do, you go to the black mortician. They're independent of the system. The barber shop, the beauty parlors. Then after talking to them, I tended to ask, "Who's the pastor in this town?" You know, the one pastor I think that could give me an overview of really what's going on this town. Then I would go to the schools. And I am going to say this with caution, and I hope you fully understand what I'm going to say -- but in the nature of this work, I'd try to find a Jewish business person. Because they have in some time suffered the effects of discrimination, the same as we have. And they would be very honest in telling me who the people were that I needed to deal with. And another thing that I would use, I always would ask the black people, "Who are the white people you think I need to see?" They would tell me. Then I would ask the white people that I would meet with, the white business leaders, and the elected officials, "Who are the blacks I need to talk with?" And nine times out of ten, they are the ones you didn't talk with.

Question:
You didn't?

Answer:
I wouldn't or they'd be the very last. They would not be at the top of my list, because they are the so-called hand-picked blacks that the white community has always used. So I made it a point for them not to be the first blacks that I would contact. Then I would go to the schools because, at that time, most of the schools were predominantly black. I'd meet with the principal and some of the teachers, and then try to find a teacher who's had the most difficulty, actually the one that's very outspoken. I try to bring little groups together and let them talk, and I listen. I mean you don't just sit there, you gotta listen to what people are saying. Then sometimes it's important to realize what's not being said. You just go on from that point. Once you get them together, that jump-starts the process. They'll suggest to you what steps you need to take. And then, we all start moving as one in that direction. Not the Justice Department, not Bob Ensley, but all of us. And we begin to pick up people along the way, you know, who are supportive. But keeping in mind that you only go as far as a community's going to permit you to go. You cannot go any further than they're going to permit you, because many times you'll get way out there in advance of what they think or where they think they need to go, and they're going to leave you and you're out there all alone. So you just go along. And when you feel as though it's time to stop and re-strategize, you do that. Many times, you strategically stop, so you can re-strategize and set some additional goals or priorities. Or, if this is not working, you move to another objective.

Julian Klugman


 [Full Interview] [Topic Top]

Answer:
We had a procedure. First you do an alert, and the alert says this is something that's within our mandate. You get the basic facts, and you determine that this is something within our mandate. Then you do an assessment. Over the years we've streamlined this. We used to say you had to go on-site, but it became too expensive and too time consuming. So we really learned to do phone assessments.

Question:
How'd you do that?

Answer:
You just call up the key people, you don't do a full assessment, but you do a phone assessment. We have techniques for how you talk to people you get the facts. We have forms and everything became computerized at one point.

Question:
So you have standard set of questions you go through?

Answer:
Yes. We did. There we had forms and we had a system.

Question:
So what does it include?

Answer:
It's like a newspaper article. When did this happen? What happened? Basic stuff. Just like a newspaper reporter, you get it fast. You focus in.

Question:
Who, what, when, why, where sort of thing?

Answer:
Exactly. What's it all about, who's involved, who are they? Sometimes you don't understand what they're telling you. Such and such a group uses an acronym. What's the acronym? You write it down, what's it mean? You get it all down in one page. You write it fast. Then, see if there's expenses involved. I'm the Regional Director and anytime there's money involved, I have to approve every step. Nobody traveled unless they had my authorization. You had to tell me what was going on before hand, and if I had any questions, I would ask them. Then you go on site and you do an assessment. But that's a commitment for us, it's money and time. You go on-site and that's really a commitment for us but it's not a complete commitment.

Question:
Did you ever try to help without going on-site?

Answer:
Oh sure, you could offer help through telephone conversations. We had at one point, as an example, an agreement with the Coast Guard. About twelve years ago the coast guard had very few blacks or women in it. They decided they had to do something. So one of the things they did was an agreement with CRS. I went to see the admiral in Long Beach and I gave them some training. They set up each unit with a trained human rights officer. The background was that there was a coast guard station way up north in California and there were a few blacks there. There was a black family that was really discriminated against. When they would go into stores, people were really nasty to them. And what the Coast Guard had done in the past in this town is they'd move the family. Very compassionate, so if there were problems they would move the family. I told them not to move anybody. Call a meeting at the chamber of commerce, and say either you guys stop that behavior or we're not going to buy anything here, we're going to buy from a town twenty miles down the road, get it? You're going to lose fifty thousand dollars a year. About two weeks later I get a call. You know it worked. That ain't mediation, there are times you don't mediate.

Will Reed


 [Full Interview] [Topic Top]

I called the chief of police, and I got in touch with key community leaders. As you're identifying issues at first, you also want to identify key players, and their roles. Going into any situation like that one, without having some idea of who the leadership is, is kinda putting your life at risk -- very much at risk, because you're walking around like a zombie or something, because you don't know who's who, and what's what. But you know for sure that the police chief is the Police Chief. In any city, you know for sure that the mayor's office is the mayor's office. But before you know that, you have to understand and learn what form of government a municipality is operating under. For example, you may go in there and say, "I'm going to talk to the mayor, and see what's going on with him." The mayor may just be a symbolic individual, so you have to find out if the mayor or the City Manager is in charge.

 

Dick Salem


 [Full Interview] [Topic Top]

Okay, number one was potential for violence. Assuming it's within our jurisdiction, the mandate of the agency. Number two, is it likely we can have some impact? How many people are involved? Another is, who's asking us? Is it a school superintendent, is it the head of the NAACP, is it a congressman's office, is it the director calling from Washington? This all had a practical impact on whether we responded or not. That had an impact on how effective we could be. It had an impact on how important the matter was, and the political consequence to the agency of responding or not responding, which obviously is a matter that you had to take into consideration. That wasn't overriding, but it could have some impact. How long had the problem been persisting? Have we ever been in that matter before? What other efforts had been undertaken? Was this intractable, or was this something that was new and fresh? Was this something we had experience in? Do we have a higher expectation of success based on our experience? Did we have the money to respond? Did we have the personnel to respond? What were the negatives? Was there someone who didn't want us to respond. Maybe there was a good reason not to. That might not be pretty always, but there well may be a reason why we should not respond. I think that probably covers all of the things we considered.

 

Nancy Ferrell


 [Full Interview] [Topic Top]

Question:
How much of a plan do you develop before you go in? How much comes later?

Answer:
Has anyone brought up the Annual Appraisal of Racial Tension?

Question:
No.

Answer:
When I first went to CRS, one of the skills which I brought that they were interested in was being able to write and design training materials and do research. One of the first things they assigned to me was to research with all the other conciliators what they did for entry. How did they know what to do when they went into a community? They were the first generation, then I came along, and now we've got some newer people. The first conciliators had pretty much learned it by doing it. Anybody that came in next had to be an apprentice with them. I was the first one who was going to try to codify and write that down. Every time, I would ask one of these veteran conciliators, "How did you know what to do?" "I just knew." "Well, how did you know?" "I don't know, I just knew." What came out of the interviews was that they had intuitively, over time, developed this whole perception that people who believe that the system will respond to their grievances, don't usually respond with violence. If there isn't a grievance procedure, or they don't have confidence in the grievance procedure and they feel that they've been mistreated, the more likely there's going to be violence. So when someone goes in on a school discrimination case, or a case involving violence in the school, they go in and ask questions like, "How many minority students do you have in special ed? How many minority students do you have on the cheerleading squad? How many minorities do you have in the Talented and Gifted program? What is your procedure for responding to grievances?" They look at the systems available to provide redress. If those systems aren't there, that will fuel the plan. If they are there and the community doesn't know about them, different plan. That was true in every institution, city government, contracting, or housing case. There are systems that should be in place to respond to people's grievances. Gill Pompa's theory really proved itself, that the higher the level of disparity and the lower the level of confidence in redress, the higher the potential for violence. High disparity, low confidence, that's the highest configuration for violence.

Nancy Ferrell


 [Full Interview] [Topic Top]

Question:
You talked a couple of times, off tape, about how you assessed whether a case was worthy of your time. You said that one aspect was a potential for violence and another was the potential to make systemic change. Was this AART a tool that you used to make that determination?

Answer:
Yes, as far as the violence part of it. One of the potential goals of it was to routinely go into a community and do an assessment. Like every three years.

Question:
Even if there hadn't been a situation?

Answer:
Even if there hadn't been an incident.

Question:
So did you go into all sorts of institutions?

Answer:
Oh yes. All the institutions were identified, as well as community systems. And it included everything: city government, schools, housing, employment, police, law enforcement.


FOOTNOTE 10: Mediator Comments on Setting Goals for Mediation

Ernest Jones


 [Full Interview] [Topic Top]

Question:
Again going back to the Louisville case, did you already have a goal in mind when you went to the judge or decided to take this case? Did you already have a goal in mind about what you wanted to happen or is that something that developed over the eight months?

Answer:
Well, I mean the goal was to provide mediation to resolve that lawsuit.

Question:
Did you have any minimum expectations? Specific expectations?

Answer:
Yeah to bring mediation to completion. I know it sounds simple but that's it. I guess the easiest way to say it is the goal would be to bring the parties to agreement on all issues and produce a mediation document signed by all the parties that the judge will find acceptable, you know or something to that effect. Basically that's it. I consider it successful if we provide the forum for mediation. We try the mediation and if it works we're successful and if it doesn't work we're successful. We're not always happy about that success but we're successful because we did what we said we were going to do. We provided the forum and we took them through the process. If for some reason they were unable to get together and resolve their issues that's not the fault of the mediator. It's not my job as a mediator to resolve the issues for them. That's their job. My job as a mediator is to run the process, to facilitate the process. That's it. I don't have to resolve the issues for them. As long as I do the thing and I do it well, then I've been successful. I do training for kids in schools on peer mediation and I tell them a lot of times you're not going to be successful in bringing the parties to an agreement but you're going to be successful in terms of having provided the forum for them to do that. If they can't reach an agreement, that's not your fault. Don't feel bad about it as long as you did the best job you can do and provided them with the process. And so I couch things in terms of if I do my job then I'm successful and I've accomplished my goal. If they can't do their job I do not take responsibility for that.

Question:
And the safeguards are built into the process to help them resolve the conflict? The process in and of itself is going to enable or assist those parties to resolve the conflict, right? By you saying that's okay, at this particular time you are going to state your issues, now that's allowing them to hear the other side and actually listen to what's being said. Then the next step of the process is to highlight one of those issues and go through it step by step. So, I'm saying the process in and of itself, if it works properly, the goal is that they'll be able to resolve their conflict based upon the methodology of the process. Is that right?

Answer:
You could say that if you wanted to. I still view it the way I stated it and that is simply that; it's not my job to resolve the issues.

Question:
What's the goal of the process then?

Answer:
The goal is to provide the process. The process doesn't have to have a goal.

Question:
What's the purpose of the process then?

Answer:
To provide the forum for mediation. To provide an opportunity for the two parties, assuming there are two of them, to come together in that particular arena and to work out an agreement on their issues. And if the mediator provides the opportunity for them to do that then the mediator is successful. If the parties are sincere about resolving the issues through mediation then they will. If they aren't or if one of the parties isn't sincere about that, and is just going through the motions of doing mediation so they can say they tried mediation, then they're not going to resolve the issues. That has nothing, absolutely nothing, to do with the mediator or the mediation process. That is due to the fact that they don't want to resolve it in that venue. I mean ideally the intent is to have them resolve it, but the reality of it is that if I provide them with an adequate process, and the forum to do it, and they don't do it then it's their faults not mine and I've been successful.

Will Reed


 [Full Interview] [Topic Top]

Answer:
We don't say, "Figure out what your goals are." Flip that over and say, "Identify what the issues are." And that's the next phase. There was a guy who wanted to know how I got involved in the Justice Department. And I told him, "I'm not the issue." You have to identify the issues. In the meantime, you're developing relationships.

Silke Hansen


 [Full Interview] [Topic Top]

Now, I'm one of those people who starts off every case initially by saying to myself, "Okay, how can I bring this to mediation?" It helps me from day one, minute one to have an agenda in my mind. As I'm working toward that, it may become clear fairly quickly that the case is not going to go to mediation, and that's fine. But if I start out thinking that it might go to mediation, I have a perspective to work from when I approach the parties. If that doesn't work, then I ask myself, "Is there some training we can do? What other kinds of assistance can we provide? Are there some documents I can give them, or maybe I can just facilitate some meetings?" or whatever. But usually, unless I am asked specifically to come in for some other purpose, I'll assume we're trying to initiate mediation. Remember the case I was talking about earlier, about tax day? In that case I was asked to come to facilitate the meeting. I ended up facilitating another one similar to that about a month later in the same community. And there were some great things that came out of that, so it was a very rewarding and beneficial event. But that would be an example of where I didn't attempt to go toward mediation, even though there were some pretty good outcomes that arose from that particular situation.

 

Edward Howden


 [Full Interview] [Topic Top]

Question:
So how did you set your goals, then, once you got on-site and you'd spoken to those parties?

Answer:
Well, I would say the goal simply arose from the nature of the problems that got defined by the respective parties. The basic mission of CRS was to help folks who were in tense, potentially (or actually) confrontational or violent situations with each other, to help them identify their main areas of grievance and difficulty and see whether something could be done to reach a common ground and ease the tensions. The problems automatically dictate the goals. Of course, CRS is concerned with not just trying to paper over the situation, but hopefully enabling the people to address real problems that underlie their difficulties, so that justice can be served on all sides by whatever resolution is reached.

Dick Salem


 [Full Interview] [Topic Top]

Question:
Who decides what they need, do you or do they?

Answer:
We always start with what the group says it needs. It would be nice to sit here and say they tell us and we respond, but the reality is when you do enough of these for enough years you can sort of pretty well see what’s needed and what’s happening and you can lead the community group into knowing what it needs very often. One simple thing is helping a group understand it needs a good agenda if is going into negotiations, with or without a mediator. That grievances should be presented in a way that they can be responded to. If the agenda is fire the school superintendent, or fire the police chief, you know that's not likely to be achievable. You encourage them to shape an agenda that puts that at the bottom and started with some of the substantive changes they want to see. So you put the achievable at the other at the top of the agenda and push "fire the police chief” to the bottom. When they make enough progress at the top and middle of the agenda, they realize that you don’t have to fire the police chief, if he’ll abide by what you’ve agreed to up above on the agenda. So that’s empowering, helping the group understand the negotiation process. And you’re leading the group that way, certainly. You’re saying, "I know what’s best for this group in this negotiation.” I’ve never seen a group when we suggest resources that are available that wouldn’t be eager to accept them, if they were serious about resolving problems. Sometimes it was a consultant we identified who could help them, someone who had resolved a similar problem in another community, or an expert in policing or schools. We could pay plane fare and honorarium. "We’ll pay this guy’s plane fare to come over to talk to you and sit down with you.” In one case, I brought three Hispanic parents from Chicago into Washington DC to meet with the Civil Rights Division (CRD) during Chicago’s school desegregation suit. There they had a chance to meet with the attorneys who were working with the city and putting a plan together. So they felt they had their voices heard in Washington. That is providing technical assistance -- knowing that’s what the group wanted in that case. It was hard to tell whether anyone was listening, but the community members felt they had their voices heard. Now that’s another way of building credibility for ourselves. Before that, trust levels were really low. There was at a big public meeting and CRD had asked me to go; the US attorney had asked me to go. Nobody else in the Justice Department wanted to go near it. So what I brought to that public meeting was the idea that we would pay the fares for three people in your group to go to Washington to talk to the Civil Rights Division and be sure their voices were heard. There was so much skepticism that somebody raised their hand from the audience and asked, "Are you going to pay our plane fare back too?”

Nancy Ferrell


 [Full Interview] [Topic Top]

The other thing, in terms of the regent response, is we always went toward systemic change. Once we responded to any kind of immediate danger, we started looking for systemic response and not just fixing the incident, but looking at the systems that were there and how we needed to deal with those.

Nancy Ferrell


 [Full Interview] [Topic Top]

Question:
What does that imply about your thought process before you go into a case? Do you have any kind of a plan laid out, or do you go in with pretty much a blank slate and just wait to see where they are before you start coming up with plans?

Answer:
I learned after ten years that I did have some ideas, but I tried to protect against going in with those expectations. Or going in with a plan. I really believe in the power of the parties to resolve their own problems. My greatest gift to them is the process to help them do that. That's what they're missing. Like I said, in ninety percent of the cases, people want to do the right thing, and given the right environment, they'll rise to that. That's the gift I bring. If I go in with a solution, I may miss the real issue. Like the university case. I would have missed all of the other things that really were more important to them than the fraternity party was. That fraternity party was a slap in the face, but had they been treated fairly on that campus and felt like they were a part of that campus, that wouldn't have occurred or they would've gone to someone and said, "What is going on here?" So to go in there because of my preconceived notions, limits their environment, and the ability to really get at the core of their issues. Sometimes it's hard. Because you've seen this situation before, you think you know what you need to do. The power of that is that you do have some things to say, there is hope. I've seen people work through these things, and I've seen good things come from this. Here are some things that have helped in other situations. So it gets them thinking, but I very much try not to go in there with a preconceived plan. It's like the city that I went to and we ended up with five groups that night. I'd never done that before, but it seemed like the right thing to do at that point, because it's what they needed. I guess that was one of the most important factors for me, trying to respond to what they needed. It was critical to try and keep an open mind about the situation. I was always surprised. Hardly ever did I go into a situation where what you expected to be the most important issue actually was.

Nancy Ferrell


 [Full Interview] [Topic Top]

Question:
Tell me what you think about the debate between transformative mediation, as they describe it, and the problem solving approaches.

Answer:
What I was trained in and learned from CRS was very transformational, in terms of relationships. That was the highest goal and that's why if you get institutional change that's great. If you can transform relationships that's incredible. But there's a very directive process for implementing the mediation process, the conciliation process, or the technical assistance. There are steps in the process to go through. Now, when I'd gone through orientation with them on the transformational I still don't buy into the whole idea of hands off as far as process is concerned. It's like finding the common interest or the personal interest that can get people to move on. If they could do that for themselves, they wouldn't need you. They wouldn't even be there, they'd be working it out. So, if you don't have a process in mind or a plan I'm not sure you're doing anything but refereeing and you're not supposed to do much of that. Now I think it's effective in highly relational situations where it's a family, an employee/supervisor, where that relationship is there. The transformative model is really a nurturing kind of guiding, keeping them focused on aspects of the issue. So in that context the purely transformational model may be most effective. Anytime you move to more complexity I'm not sure it would be effective in the pure sense. I think I have said to more parties than I could ever name, "I'm in charge of the process. If you're uncomfortable with that I need to know." What I have to offer you is the process, and it works. If we'll honor the process something good can come out of it for you. It's my job to make sure we honor the process.

Question:
Do you give them opportunities to tinker with it?

Answer:
Oh, I think from what I've said the dance is part of the tinkering. I'll go in different directions and I think one of the real challenges is to always be open to that. But if you know the process you can deviate from it. That's one of the things that I thought about with Folger, Bush and Folger is to be able to do that really well, with great integrity, you would have to be an incredible craftsman with the process. To be able to use it effectively you would have to have complete confidence in your abilities to use it. You can break rules if you understand what the rules are and why you're breaking them. It supercedes the benefit of the rule. But if you don't know that then you're just open to chaos. Now I'm not comfortable with that. I think in the role of the mediator there are some specific skills of process that give people a sense of hope. But it's not going to be a free for all. They've done that, they know how to do that. But there's going to be some structure and some process of dealing with issues that can bring healing and transformation.


FOOTNOTE 11: Mediator Comments on Underlying Issues

Dick Salem


 [Full Interview] [Topic Top]

Question:
Changing gears, going back to the assessment phase, how do you go about identifying what issues are key? Is this something that you leave to the parties, or is this something that the mediator will play a strong role in doing?

Answer:
Well, it’s politically correct to say you leave it to the parties to define the issues, and in fact you do. But you see things. You’re traveling around, and when you get to Evansville or Xenia or Springfield, you’ve seen the situation in other places and you hear certain things, and all of that directs your questions to certain points. The state of the group, how serious the violations are, what kind of sources of support they have, all these factors tend to alert you. That doesn’t mean that an individual without an organization can’t bring about great change. I mean, I told you about this community worker who wasn’t even from Battle Creek, who was bringing about major change at a small community college but that’s the exception. So during your assessment, you look for certain things: what resources are in the community, how supportive are they? Things that would key in the mediator in doing the assessment, and making it more efficient to determine whether or not mediation or further intervention would have significant results. So yes, the parties would define the issues, but sometimes you would point out other issues that were important to them, that they just hadn’t really thought about in the context of this particular problem. A jail suicide is what they’re complaining about, but there may be underlying issues in police/community relations that led up to this. "Why don’t you believe them when they tell you this was a suicide?” There’s a lack of trust. So what engendered that lack of trust are the issues you may want to look at.

Nancy Ferrell


 [Full Interview] [Topic Top]

Question:
You mentioned at one point that the issues that you thought were the critical issues often turned out not to be. How did you decide what was and what wasn't critical?

Answer:
The parties decided. That was always the surprise. The incident with the school is a good example. As much as it turns your stomach, the kids didn't do any direct harm to anyone with that fraternity party. What came down to be more important to those minority students was the fact that they weren't getting a fair chance at a fair education. If we had only addressed the frat party, we would never have gotten to the real problems that they were having. I had no idea going in and came out knowing that we created an environment for them to feel safe.

Efrain Martinez


 [Full Interview] [Topic Top]

Let's talk about identifying the issues and the conflict. You said last time you basically talked to everybody and asked them what's going on I imagine that you sometimes get a superficial answer and then there's a need to dig deeper to get more of the underlying issues. How do you go about doing that?

Answer:
Just through questions, discussions, and asking them what is important to them. What is really important. People say we want justice, but doesn't everybody want justice? They said they're engaging in that activity because they want justice. So what I've done several times is kind of turn that around and instead of talking about justice, talk about injustice. So, say there was a police situation with a community. What is unjust that they're doing? Well they used excessive force, that's unjust. They're not hiring enough minorities, that's unjust. They are ticketing us more than others, that's injustice to them. Let's say we have five categories or five issues that define the injustice, so if you take care of all those and you come to an understanding or there's progress made on those five, then they have justice.

Question:
And you do this by asking questions, I gather....?

Answer:
Yes.

Will Reed


 [Full Interview] [Topic Top]

Answer:
We don't say, "Figure out what your goals are." Flip that over and say, "Identify what the issues are." And that's the next phase. There was a guy who wanted to know how I got involved in the Justice Department. And I told him, "I'm not the issue." You have to identify the issues. In the meantime, you're developing relationships.

Question:
The first issue is historical?

Answer:
Well, yes. The first issue is historical. You've got initial hostility between whites and Indians, so you know that goes back to....forever. That's a given -- you put that on the table. The next things you put on the table are the issues of economics, employment, housing, and discrimination, and identify which one of these things caused the problem. With minority communities across the board, even today, you can almost always go back to those issues of deprivation in some way and form. You realize that, so you pull up another issue and the next issue could be Indian treatment in the criminal justice system. In this particular case, was this an act of suicide by this young man or was it brutality on the part of the jailers or the police? That's an issue you've got to identify...

 

Efrain Martinez


 [Full Interview] [Topic Top]

I went to the business leaders, the chamber of commerce people, and asked, "What is this costing you?" "It's costing a lot of hotel reservations. People that were going to have conventions here have canceled. Fishing is quite popular around there, so some of the fishing tournaments have been canceled. The downtown shops are losing money because that's where some of the Klan rallies have been." It was to their self-interest to get involved, to do something about it. So going back to the self-interest, that conflict is bad business. Racism that causes conflict is bad business. And it's bad for the community business, so what I do is get to the self interest of these different elements. It would be to their self interest to get involved to fix the conflict. It's like say a hand or a body, you smash a finger, well the whole body hurts, not just the finger, the whole body needs to get involved in fixing the finger. In making it better for that one element it makes it better for everybody. Communities work in the same way.

Question:
Can you briefly tell us what the other interests were for the groups besides the businesses?

Answer:
Political leaders want to be elected and they care for the overall community. As for educators, their classes were being canceled, causing disruption in the schools, it's not good business for them, either.

Nancy Ferrell


 [Full Interview] [Topic Top]

Question:
Again going back to what you were telling people before you brought them together. You said that you wanted to mediate the university's thoughts on this incident, but did you tell them at that point that you had a broader interest too, or did you bring that in later, or did it just happen naturally?

Answer:
Well again, it was as much a part of our regional interest as my propensity. My propensity was to let that open itself up wherever it went. Generally people will say, that's just the tip of the iceberg. That's just an incident. The real issue is that we're isolated on campus, we don't have any opportunity to serve our student government, we have professors here, and it just comes out. So you either say, "well that's too bad, good luck with that, but we're going to deal with this incident with the fraternity" or you can limit what they say, and just limit the discussions to that. I went into a small community in Texas and I can't even remember what the triggering incident was, probably police use of force, I'd have to look back. When I got there we were in a community center and there were about fifty people there. I said, "Just talk to me. What are your concerns?” Within about an hour, I realized there were people there who were concerned about the school district, the police department, there were four different interest groups, and I just divided them up in the room. Everyone that's most interested concerns in the school district, go in that corner. Everyone that's more interested in police here, city government here, contracting here. And just divided them up and it turned out to be a five-prong community conflict resolution kind of thing. So we were dealing with just about every major system in that city. But I didn't know that when I got there.

Angel Alderete


 [Full Interview] [Topic Top]

So we got them together again and the concerns were bread and butter: "You're beating us up, and you're beating my kids up. You're not giving us a fair chance." That was a concern. But employment..... the police department and the rest of the city, aside from token employment, had no people of color. So that got bigger than just the cops "beating my kid up."

Angel Alderete


 [Full Interview] [Topic Top]

and their concerns were the usual ones. No Mexican American teachers, no coach for their basketball team, they didn't have football. Classrooms were in extremely poor condition. It was one hundred percent Mexican Americans, so you're just concerned with the Mexican American school group. In fact, the school district, the city, was maybe 96% Mexican American, the rest were all white.


FOOTNOTE 12: Mediator Comments on Evaluating Parties' Goals in Mediation

Silke Hansen


 [Full Interview] [Topic Top]

One of my favorite examples to give parties -- and again, if I do mediation training, I often use this one -- is the one with the girls fighting over the orange: One wants the rind for the cake, the other wants the juice to drink, so it looks like neither one can get the whole orange. Many times you'll hear that example stop there, though. There's more: The girl who got the rind -- if she hadn't gotten the rind, maybe she could have used vanilla flavor or almond flavor or maple flavor. The point is that she didn't actually need the orange; she just needed flavoring. And likewise, the girl who got the juice -- if she didn't get the juice, she could have had milk or apple juice or water or coffee in my case beer but she was really just looking for a beverage. So they fought over the orange, but the orange wasn't necessarily what would best meet their respective needs they just saw it that way. Part of my job, then, is to get the girls to see that the orange is not necessarily the objective; rather, I need to get one girl to recognize that she is looking for flavoring and then investigate all of the various ways that she might obtain that. Similarly, I need to get the other girl to realize that she's really looking for a beverage and explore the possibilities of obtaining that. Eventually, you may get to the point where the orange itself isn't wanted by either of them anymore, but their interests and their needs have been met, and I think that's what differentiates good mediators from outstanding mediators, if you will. It's that ability to help replace the rind with another flavoring and the juice with another beverage, because once the parties can do that, their options are vastly multiplied, because they don't even need the orange anymore. And they pay me to do this -- I love this job. I sort of get on my little soap box and I apologize when I do that but it really is exciting when people in conflict begin to see that there are ways of dealing with their problems that they haven't even explored before. It's pretty exciting.

Question:
I have a theoretical question for you. At the Conflict Consortium, we have been working on a theory of intractable conflicts for a long time. We have said that intractable conflicts generally cannot be mediated (almost by definition) and that identity conflicts, including racial conflicts, are particularly likely to be intractable. So as I was listening to your discussion about the orange, I began to wonder, how do you get people to reframe a conflict from being about race to being about something else?

Answer:
It's what I started talking about early on. You don't talk about race; instead, you ask, "What are the hiring policies?" or, "What are the discipline issues?" You ask, "What does the curriculum look like?" or, "Do you have access to the establishment, to the superintendent?" Because even though the community sees the superintendent as being racist and as being the reason why they can't get what they want, the real issues and I'm not going to say race hasn't influenced what has happened there but the next level or the level at which this needs to be resolved isn't race; it's policies and procedures, and access, and communities, and processes. It's about interaction and communication, both of which were sorely lacking in this case. The race factor just made it more difficult because both sides believed, "Those people are difficult to deal with because of what they have been taught." Race was the orange, but it wasn't the issue. The community could get a person of the same race in that position who didn't change the policies, and that would be more frustrating, because now one can't even blame it on racism anymore. But if they got somebody else who is white, but who changes the policy and is more responsive to the community, that will decrease the perception of racism. And that will diminish the taproot or fuse of inequality and disparity. So even though people see the issue as race, it really isn't race at all. Another example of that is the issue of sovereignty, though I haven't yet been able to get the parties to understand this, and so I haven't been successful in reframing in this area. Sovereignty is a big issue with Native Americans, particularly when it comes to law enforcement on reservations. There is less and less willingness by tribal leadership to allow a non-tribal law enforcement to have any kind of role on the reservation. This also applies in cases of hunting and fishing rights disputes. One of the biggest obstacles to developing some effective collaborative approaches to law enforcement on and near reservations, and to hunting/fishing rights on and near reservations is that both the American Indians and state officials approach it from a perspective of, "Who has the sovereignty? Who has the jurisdiction?" What I try to get across is, "Okay, if you have the jurisdiction, or if you have the sovereignty, what is it you want to do with it? What is it that you want to accomplish?" If I could get them to talk about what effective law enforcement would look like, regardless of who has the jurisdiction and the sovereignty, I really think they could work that out. I totally believe that. But it is such a sensitive issue, it is very difficult to get beyond that. The focus has been on the sovereignty, because it's a symbolic issue as well as a real issue. Symbolic issues are very difficult to surmount. There was one hunting/fishing case that I was called in to, where the state and the tribe had been in negotiations but reached a deadlock. That's when someone called me. They said, "Well, so- and-so says Silke Hansen claims she can do this. Let's call her." "Oh gee, thanks a lot!" I keep telling people, "Why don't you call when you start these negotiations, not when they fall apart?" But I went up anyway, and they showed me what they had done, and I said, "I don't even want to see that." I started putting stuff on the white board. "If you have regulations, what are your objectives? What is it you are trying to accomplish?" And they were like this [she linked her fingers together] they absolutely agreed. So once they agreed on that, it was just a matter of determining what kind of policies each side needed to bring those objectives about. Both sides gave a little, and at the end of a very long day, the people at the table reached an agreement. That's the good news. The bad news is that when it went back to the tribe the tribe didn't buy it, because they said it was encroaching too much on their sovereignty. Another case in the same state ended the same way. It involved a similar kind of negotiation. The parties reached an agreement at the end of the day, but in that case it was the state that blocked the agreement. The negotiators went back to their superiors, who threw out the agreement, again on issues of sovereignty. So there was no agreement. But to me, it proves a point. You have to cut through and disregard the identity issues well, you can't ignore these issues totally because they are there. But the mistake that we usually make in most discussions is that we make racism or sovereignty the issue, and that is not the issue. The issue is, "How can we get past that to provide effective law enforcement?" "How can we get past that to provide good stewardship of our natural resources?" But the history of feeling attacked and encroached-upon and the perception that "they are just trying to whittle away at what we have, piece-by-piece," prevents people from focusing on the real issues. On the other hand, there is the concern that the state "should not give those people special rights and recognition." These feelings are so strong that it is very difficult to come from a different perspective. But I am absolutely convinced if they could just throw out that "orange" and deal with the "flavoring" and the "beverage," there would be much more common ground.

Question:
When you succeed in getting them to do that, what is the long-term result in terms of identity and symbolic issues and race relations? If they can cut through those things to resolve this incident, does it have a long-term effect on other incidents?

Answer:
Well, I think it would if it worked at all, but as I said in the two examples that I gave you, it didn't work. The people at the table were able to reframe the problem, but their superiors were not willing to do that, and the agreements were thrown out for political reasons. It was seen as giving too much or losing too much in terms of sovereignty and jurisdiction and control. So neither agreement held up. I do believe that had it held up, it could have provided a good model, a good precedent for how we can get cooperative agreements on issues like this. In fact, there are other states where there is less mistrust between state and tribe, and where in fact we do have better cooperative relationships. If you could either just not mention "sovereignty" or acknowledge that each of them has sovereignty, and that the two separate governments of two sovereign states are reaching an agreement, I think it would be doable. But there is so much tension and mistrust in this particular setting that it is difficult to make that happen.

Question:
What about other settings though? Such as, for instance, the principal who was accused of being racist, where you were able to reframe it in terms of discipline policy and hiring and that type of thing? Would that have affected the long-term relationship on race relations in the schools?

Answer:
It would, because the potential triggering incidents are less common, so the "bomb" is less likely to go off. Now there is a precedent of communication. There is a mechanism and an expectation that people will address and deal with problems before they get to the point of explosion. So it is the redress side that's handled more effectively. Once there is a precedent for communication, it makes a big difference. Probably one of the most positive examples of that is the same tax day facilitation. There were anywhere from 75 to 100 people in that room and at least as many when I went back for a second meeting. But out of those meetings came a sort of "community board" which included Hispanic and Anglo participants, including law enforcement people. They formed this board and I trained them in three days I gave them three days of basic mediation training. I remember one of the members of the group said, "Gee, you know, Silke, I think this is the first time somebody has come and said, 'I'm from the Federal Government and I'm here to help you,' and then actually done it." I thought that was a huge compliment at the time. That board still exists today, and is still dealing with problems involving the police and community relations. But they also began to look at other sources of tension within the community. This community started out as very mistrustful. There were a lot of accusations about how Hispanics were being treated by the law enforcement system. But now the leader of that system is working with that Hispanic community to deal with education issues in the community purely because people are talking to each other now. And they pay me to do that! It's great!

Silke Hansen


 [Full Interview] [Topic Top]

So one of the things that we did is to start off in very general terms talking about their hopes and priorities and expectations for the community. We would ask them what a fair agreement, in broad terms, would look like to them. As we discussed that, there was the beginning of seeing that there is some agreement here. We may have very different approaches, but there are some common denominators there. We didn't call it "fairness" at that time, but that's really what we were talking about. If we are talking about a fair system, that would include the principles that everyone agrees to. But I really do think that a mediator is going to get into trouble if they try to control whether or not an agreement is fair. On the other hand, I do think that a mediator has some responsibility to not allow a party to negotiate away basic civil rights.

 

Ozell Sutton


 [Full Interview] [Topic Top]

Question:
Would you have said that to the white caucus?

Answer:
I made a demonstration with them when I got over there. I said I've been with the Justice Department a long time. I believe like Langston Hughes: "Justice delayed is justice denied." I'm here from a different angle, but you're talking about the same subject. I don't wish that you sacrifice your rights, I don't want anybody to sacrifice their rights. But let's get onto it. Here I go on another sermon, but from a different angle.

Question:
So you reframed the issue for them in the caucus?

Answer:
In words that they could connect to.

Question:
That's an important piece, the use of language as a trust building tool.


FOOTNOTE 13: Mediator Comments on Addressing Parties' Concerns in Mediation

Bob Ensley


 [Full Interview] [Topic Top]

You mentioned a checklist -- is this a mental checklist that you have?

Answer:
A mental checklist, yes.

Question:
And what's on this checklist?

Answer:
Who's to be involved, certain time limits, what goals and objectives did they set that were different than what you had originally thought of terms of. Who else they are involving and any money that is involved. Also, what additional role is there for me? What will I be able to do? Who am I going to assist? Am I going to assist a Human Relations Council, or am I going to assist the people, or do I assist them together? It's much easier if we can work harmoniously with all the groups as they come together, than to assist one over the other, because it may appear as if we're taking a position with the Human Relations Commission and have forgotten about them being able to represent themselves and speak for themselves.

 


FOOTNOTE 14: Mediator Comments on Fact-Finding in Mediation

Ernest Jones


 [Full Interview] [Topic Top]

Question:
Now in this particular case, mentioning that, did you feel that the conflict became defined a little bit differently as time went on?

Answer:
No it was the same. There were clear issues. That's the one good thing about that situation was that the issues were pretty clear and definitive and the numbers were there. The data was existed.

Question:
So there weren't any factual discrepancies?

Answer:
No there were a lot of discrepancies because people would express their position on an issue and over a period of time they came to distort the issue.

Question:
For example?

Answer:
They'd make statements like a black has never held a position above Sergeant. Well that's not true and the city could show that in fact they'd had an assistant chief who was black. They'd had a black captain. They'd had a black major. They had a bunch of black lieutenants. Over the history of the department they'd had these but what had happened is that the black officers just kept saying nobody has been above a Sergeant. And all of a sudden that becomes the truth for them and it wasn't the truth. Factually that wasn't the truth, but for the black officers that was real-- it had just materialized to that point. I could just cite that for a whole bunch of different issues from the cities perspective, from the FOP's perspective, and from the black's perspective. This is just human nature. We allow things to become something that they're not because of the emphasis that we place on it.

Question:
Now once the facts were actually given and provided did the other side accept those as facts?

Answer:
Well let's just take the one we were just talking about. As I recall the response was something to the effect of well, yeah we forgot about that, but that was 30 years ago. We're talking about today. And that happened with those kinds of issues. People reluctantly understand that the historical data is there because it's on paper and people can prove it. But because they've made that an issue and they've stated their position, somehow there's got to be some face saving taking place here and so we change the focus to today. That's what we're talking about. And that way everybody has saved face all the way around the table. And that happens a lot and it happened a lot in this case.

Question:
So they didn't lose any of their validity?

Answer:
Their perspective, was "well we showed you." It's incredible to me how childish adults can be. I don't know why because I see it repeatedly day after day but it has a whole "one-upsmanship." Well we showed you that you were wrong. Yeah you did but you had to go back thirty years to do it. It has that whole attitude. So everybody feels that they've made their point and now we just have to figure out how to get it down on paper. That's the trick.


FOOTNOTE 15: Mediator Comments on Maintaining or Regaining Control in Mediation

Julian Klugman


 [Full Interview] [Topic Top]

Answer:
One I mentioned was the kid.

Question:
But what were the various approaches you used for dealing with that?

Answer:
I quieted them down. You're teaching them, you're a role model. It's how do you deal with that anger. I've been in some very violent situations, where you get angry, your heart starts beating, and your natural impulse is to lash out. That's where training comes in. Or, if I'm really angry or if the violence is really scaring me, I take a deep breath and I psychologically step back a foot. I wait until my heart stops pounding which takes about sixty seconds before I respond at all. You can be angry, but it's got to be controlled. Listen to what the person's saying, don't respond to the anger. Don't be condescending, don't be a smart-aleck, don't act like you're really afraid. Don't be a psychiatrist, but do take the person off the hook and depersonalize it. And this is where the interracial thing becomes important. There are differences between people and between groups and how they deal with anger. Do you know the book that the white professor at the University of Illinois did about the differences in confrontation between black and white? It's an excellent book; you ought to read it. You've got a great difference in perception sometimes of what's happening. I saw it in Palm Springs once. Here's this nice, sweet, young white teacher and a black woman parent came out with a lot of anger, which really wasn't directed at this woman. The white woman started crying and the superintendent wrote a complaint letter to the Attorney General of the U.S. about the mediator.

Question:
How does the mediator deal with that problem?

Answer:
Well, you're a role model, you ease up the flow. You might suggest a bathroom break.

Question:
Then you take the black person aside and say the reason she's reacting this way is because...

Answer:
No. I would not presume to tell this woman she does not have a right to be angry. This young white teacher; you tell her it's not personal. She was head of the cheerleaders and there were no black cheerleaders. There was no prejudice involved, of course, but the Palm Springs high school did not have any black cheerleaders. So they wanted some black cheerleaders and she had her own little kingdom of cheerleaders. There are a number of techniques. You break the flow, you talk calmly, you go onto another issue. You assert control in the situation.

Question:
Going back to the anger management, when things get really hot in a mediation, how do you cool them down?

Answer:
Sometimes you can make a joke. Everybody likes it when you laugh at yourself and make fun of yourself, so you can diffuse a situation through humor. One former CRS director used to draw cartoons. Very good ones. I'll show you, I've got a whole series of them. He would sit there and he was like a professional cartoonist, although he was a lawyer.

Question:
Break the flow. Any other ideas?

Answer:
About how you handle it? Ultimately you could adjourn the meeting, if you had to, or you could have a recess. And then you talk to the person.

Stephen Thom


 [Full Interview] [Topic Top]

What I told this principal was, "Do you know the players, do you know the real players that were involved in this altercation?" She said, "Yes, between the counselors and security, we know who the players are." I said, "Okay, bring them in, one by one. Tell them, you need their help. Tell them 'I want to make sure that we bring this school back together, and I need your help. Will you help me?' You're the principal of the school." And she said, "Oh yeah, just bring them in one by one?" I said, "Yes, see if you can get them to support you." "What happens if they don't?" she asked. "Keep them on suspension."So I called her that evening and she said, "Steve, every one of them gave their word. It's amazing, these are great kids." I said, "Yeah, they are. Have you never met them before?' She said, "Now what do I do?" I said, 'Ok, they're keeping their word, they're helping to keep things calm?" She said, "Yeah they are, but I don't think I can just leave it like this." I said, "Now that they've made a commitment to you, you can bring them together as a group. So bring the Samoan kids in. Remind them they've already made their commitment, that they've individually given their word so that peer pressure doesn't take them to another level. Then talk to them about how we need you all to control not only yourselves as individuals, but also others to help diffuse the tension here. Then bring in the other group and do the same thing." So she talked to them and she said, "They all agree, we're all on the same page. Things are still okay."

Stephen Thom


 [Full Interview] [Topic Top]

Do you have techniques you use for reducing tensions between the parties?

Answer:
Sometimes they get hot and I have to watch the parties and see what level of tolerance one has of each group. I read the behaviors and decide whether to ask them to calm down. Sometimes I call for timeouts and ask for caucuses. There have been times where I've said, "Wait a minute, we need to review why we're here and what tone and ground rules we've agreed to abide by. If I sense some discomfort by some of the people, I'll say, "By the behavior of the individuals there seems to be a need to take some of that tone out of here," or "Could we take a time out?" At that time I can meet with individuals to draw out that person and speak to that person directly and say, "You know you're creating a level of hostility. Do we want to move forward in working towards a solution? We're not going to cut you out of getting your voice and what you want to accomplish, but the tone is going to possibly harden the other side, so it depends what you want to accomplish here. Think about that as you convey your issues. You could be passionate, but don't get to the point where you're so aggressive that it harms the process." I think those are the kinds of techniques that I have used.

Stephen Thom


 [Full Interview] [Topic Top]

The other thing I wanted to mention about tension is I think it's always good to bring humor. I have a very light humor. They always say something that you can play off on that you can stay within the context and still be light enough but bring enough humor to defuse some of that tension. I think humor is a very valuable tool. Some people know how to use it and some people don't. It's tricky, I know, because you can get hurt with humor sometimes, but I found humor to be a very meaningful way to relieve tension and a valuable one.

Question:
Do you have any examples or guidelines for humor?

Answer:
Well, now you're asking me. I can't tell jokes, I can't remember. Maybe, the things that you play off on are things you hear and the misinterpretations we have and using yourself as the vehicle for humor versus any of the parties. But, everybody will say something and then they'll know it's a miscommunication or it's a faux pas of some type and you catch it and you go "Did you hear that one?" Just a light playoff on words sometimes can relieve a lot of tension. When you see the parties warming up in that vein of a little humor sometimes, it gets a whole lot of invigorated faith in the other person's ability to recognize that the other party is just another human being with needs and interest just like me.

Edward Howden


 [Full Interview] [Topic Top]

Question:
What you did to reduce tensions when they are high? Did you ever run into a situation in mediation where things got really tense and you needed to calm them down?

Answer:
Sometimes. I was usually able to moderate the situation without any heavy handedness. Once in a while a certain decisiveness, maybe even standing up and speaking very loudly, was necessary. That was rare, but I can recall a couple of occasions where that, in my judgment, became necessary. One was a business mediation, which was kind of unusual for us to do, but a minority sub-contractor was one of the parties on a big housing development that had been ninety-seven percent completed. It was a middle income development, and there was an impasse between this sub-contractor who had some minor finishing work to do and the general contractor who was not minority. They had some bad blood on various things, various past hassles, and now they were right at impasse. As I recall, somebody from HUD called us. HUD was involved in some aspects of the financing and everybody wanted to see the project finished since housing was a desperate need. The attorneys for the two parties actually were willing to have us give them a hand. One of the attorneys handled arrangements and they were willing to move fast, like tomorrow. I had no chance to study the issue. They were so anxious to get to it, I think it was the attorney for the minority sub-contractor, that he arranged the meeting room in a major hotel-- normally I would be doing that. Anyhow, we got into that session quickly. The minority sub-contractor, the main person, didn't have a bonding capacity or something, he had some kind of a problem financially, and he had brought in this guy from New York to help him. We went through the regular opening routine and I explained to these folks, "look, you all understand that I'm not expert in the contracting business and I've had no chance to study up on this as there's been no time. You're in a hurry, so you're going to have to educate me as we go along, and I may have a lot of questions." They agreed, and we got going. We got fairly well into it but then an impasse developed and people got angry. A gentleman representing the minority sub-contractor who was six foot three and big strong guy, said angrily, "I'm not going to take any more of this, you know," and accused the general contractor of insulting him. "I'm not going to take any of this, this is a waste of time" and he stood up to walk out. So I'm at the end of the table and I stood up and said, "Dammit, Mr..., you agreed to the approach we were going to take to this, and we are following that approach and I think we can make it, so please sit down." He paused a moment, and then he sat down. And we got on with it. By the end of the day we had a deal. As a matter of fact, Mr... was so happy with the deal, he invited everybody down to a bar at this famous hotel and bought us a round of drinks. There was one other intra-tribal scene where a lot of folks were present and it was just not feasible to limit it to a four or five member team. Actually there were several teams from either side. There was a clan or family grouping, with history behind it, that was very unhappy for maybe a couple of generations. Some of the other members of the band insisted on being present. It wasn't public with press, but there was quite a crowd, and that got messy. People were standing up shouting, and it became pretty difficult to have any orderly process. After a time trying to keep it on track, I asked for a recess and spoke with some of the folks. I explained that we had agreed in advance who the people were who were going to handle this, and I told them that we were not going to be able to pull it off if it continued like it was going. "I don't want to tell anybody to go home, I can't tell anybody to go home," I said, " but how about we convene the original group in such and such a room." So we proceeded on that basis. But that was one case where it was it couldn't have gone anywhere on the basis on which it had started. In situations with high tensions, from time to time there would be individuals who would explode or get close to exploding, but usually we didn't have anything fall apart when that happened. We were able to have our recess and to caucus and get back on track.

Will Reed


 [Full Interview] [Topic Top]

Answer:
A lot of times you do. A lot of times you want to have one side overcome their hostility or let it all hang out and then sometimes, it hangs out no matter who is there. You just have to be cool and let them talk; don't go in there and try to shut them up. Usually if you don't say anything, someone from their group will quiet the loud individual and that's more effective than if you do it yourself. When somebody's up there and they have the floor, the best thing you can do is let them speak. Most people, unless they have some real problem, will accept that you are a mediator.

Will Reed


 [Full Interview] [Topic Top]

Question:
Going back to the meetings, how did you reduce tension? If you've got somebody up there screaming at the other side because they're so mad about all of these issues, that's likely to make people on the other side mad. What did you do to keep the meeting under control?

Answer:
Well, there were times, when needless to say, I had to exert some kind of authority. I had to -- from time to time and depending on the situation -- say, "Wait a minute, we're not having stuff like that." And most of the time I could reduce the tension by stepping in that way.

Question:
How do you make a judgment call about when to do that?

Answer:
Well, it depends on if somebody's threatening violence, and generally you can tell when that is going to happen. I remember one time in Oklahoma, the white establishment business council, came in and put their guns on the table in front of the council and the sheriff. How were we going to deal with that, because the sheriff wouldn't tell them to remove their guns." So, before things got started, I just got vehement. I didn't know if it was going to work; I suppose if they had said, "Shut up and get your black butt out of here," I would have left, but they didn't. I got up and I said, "Hold it! None of this!" I put on my best act like I was mad, my eyes got big as saucers. I was scared of them, but they didn't know I was scared. I was really scaring them! They said, "Oh. Yes sir. Yes sir." Boy, they went back out to their pick up trucks and got rid of those weapons. The minorities in this situation were Hispanics instead of Indian. That was the only time I ever saw anybody put their firearms on the table.

Dick Salem


 [Full Interview] [Topic Top]

Question:
Interesting story. When you brought parties together when tensions were high, what did you do to try to facilitate effective communications?

Answer:
I would let them talk and do a lot of listening. Sometimes counsel parties if somebody got very angry. Sometimes you would say something like "I can’t tell anybody what to say, or how to behave, but I just want to emphasize that when we use certain language it makes it difficult to communicate and make progress, so I’ll ask you to just keep that in mind.” That wasn’t often. No, I would never tell anybody how to talk to anybody. It might come up. I think people understood what the ramifications of their behaviors were and they had to play it out when they were together. Usually, by the time you get to the table the anger has been expressed sufficiently so that the level of anger expressed at the table is mitigated a bit.

Nancy Ferrell


 [Full Interview] [Topic Top]

Question:
Do you do anything else that you haven't already described to try to manage really strong emotions?

Answer:
I pay attention to the setting. How people are arranged in the room, whether they're sitting close to each other, if they're really hostile toward each other. I may intentionally put myself between them. Have enough room between them so that they're not going to feel threatened by one another. I remind them in a private meeting, they may not want to embarrass anybody, think of what it's going to cost. If you continue in this direction we're not going to move toward productive resolution. But if you feel that strongly, that may not be an appropriate response. I think that always needs to be restated when emotions are really high. Not to try to push them on, but to give them an out. If you feel that strongly, this may not be the appropriate avenue. You may need to take legal action. You may need to use another option. Most times they'll come back from that and say, "No. I really want to try to do this. Maybe we need to meet another day. Get some more information." A lot of that I've dealt with in private groups where they've been allowed to really vent as much as they want and then I begin to test some of that. This is not a community example, but it's a clear example. Some of the community people believed that this municipality and the business leadership intentionally kept the gas prices in their community high, because those establishment people could all go outside the community to get gasoline. The community was pretty much confined to the community to buy gas and their gasoline prices were higher. I traveled from there and out of there all the time, and the reality was that the prices were cheaper in town, then they were out of town. But to say that to them immediately, is not helpful. But as they gained trust venting, I began to test some of that and say, "Okay, have you checked some of that out?" So next meeting they come back with better information. I had one situation where the community just swore that if you were arrested and a minority, when you were taken to jail you would be beaten, no questions asked. I shared this with the chief and the staff, his administrators. They were just horrified. One of the deputies said, "we haven't beaten anybody for twenty years!" I said, "Well, they remember." He couldn't believe that the community still carried that perception. I didn't even tell him as I remember, he had the courage to go ask. He was really horrified that people would say that. He had the courage to ask the prisoners that he had right then, "what did you think was going to happen when you got here?" They said, "we expected to be beaten." He then had the courage to come back to our group and say that. That's what they thought, that's what they believed. I said, "That's the power of history. People carry any incident with them, until there's intentional effort to change that history." You know you haven't done that for twenty years, but there's been no intentional effort to say to the community, "that's not who we are anymore." Those were examples of where you deal with some of the reality checking ahead of time, so you begin to break down some of the myth. You break down as many of the myths as possible, so that by the time you get to the table, there's some basis for discussions. If all of these myths are true, then you don't have much relationship to deal with. If you can see that some of those myths don't have a reality base, then you begin to think maybe there are some things we can talk about. If that wasn't true, maybe we were misunderstood.


FOOTNOTE 16: Mediator Comments on Mediator Roles

Silke Hansen


 [Full Interview] [Topic Top]

How instrumental were you as a CRS worker in developing those interests and directing both sides to maybe show the data or show that good faith was there?

 

Answer:
Of course I want to say it wouldn't have happened without us. I think we were instrumental. I think that some people see facilitators as just sort of being there and making it happen. After a while, I think you almost unconsciously help frame it in terms of making sure that both sides see what the significance is. You make sure that both sides take out the significance of the information that they were getting from the other side and understand why that information was being presented. I think that's what is often missed. Frequently, you have two parties in a conflict and there's been a lot of talk and a lot of alleged communication, but just because people are talking, doesn't mean that they're communicating. So part of the role that we, as mediators, play, is making sure that if people are talking, that the other side is listening and understanding. In a setting like this, I think that was as crucial as any case that we've worked in.

 

Bob Hughes


 [Full Interview] [Topic Top]

How did you deal with parties who came to the table just giving lip service who weren't really negotiating in good faith?

Answer:
Well, hopefully try not to arrange mediation until they were in fact ready to deal with sincerity. But if it happened anyway I would probably not attempt to go very far before talking with them privately and pointing out that I felt like they might not be as open as they needed to be to participate in mediation.

Question:
Was it usually handled simply like that? A simple caucus saying, "I don't think you are being as open as you should be." Now do they automatically go back in and are they forthright?

Answer:
No, probably the next day. We would probably be adjourned for that day. I would not expect a change of behavior without some period of reflection on what I was raising.

Dick Salem


 [Full Interview] [Topic Top]

Question:
Were there ever situations where you got people to the table but they weren’t negotiating in good faith?

Answer:
Of course.

Question:
Then what?

Answer:
When you find out you have to address it. I’m trying to keep the theoretical from the practical and actual. There are times when people come together and they aren’t going to negotiate in good faith, but they have to come together. I certainly think there are cases where people had their mind made up and couldn’t bring themselves to change it and had no intention to. Again, I don’t know if that’s not in good faith, I think for example that at Kent State, with the trusties and the University being very conservative and not yielding an inch and having no compassion, sympathy, or empathy for the protestors that they were not going to budge an inch unless they were forced to. So there you have low trust levels, and unwillingness to change. What you’re hoping is that when people come around the table and hear each other out, they will move off of their intractable positions. But again, the politics have to actually permit people to change. If you’re dealing with nations, or high institutions perhaps for political reasons they can’t change. If you’re dealing with people across the table who aren’t bound that way, they can make some concessions and some changes. Sometimes they can do it and save face. But you can get a school superintendent to make some changes that are totally unacceptable to him for political reasons. His board would never accept it and his public would never accept it. Yet there are changes that he might make after listening, just as he does other things he is asked to do, that are just as important to the community, that he could do without risk. So that when he came in that room, he wasn’t going to yield an inch, but as he listened he found out that he could. I think that comes into play. So it really depends on the political constraints on the establishment party and also on the community party. In the building trades the group couldn’t move, wouldn’t meet, because trust levels were so low. But there was something going on in that coalition, in the building trades coalition, that prevented them from moving forward. That had to be worked out internally without outside intervention or interference. They had to work out their own power struggle internally before they could move forward.

Stephen Thom


 [Full Interview] [Topic Top]

Typically when you reach an impasse, and there's no give and take by either party, we like to call a caucus and see if we can get any more information as to what are the particulars and what are the positions and concerns of either party with regards to the issue we are stuck on. In the caucus, I try to clarify where people are on the issues, and why.

 

Bob Hughes


 [Full Interview] [Topic Top]

One, the main thing we need to get is a free and frank exchange of ideas. This can be brutal at times. I've had a mayor walk out of a meeting and I had to chase him and say, "This is what we've got to have, get all the problems out here on the table now. Whatever way it takes. We should be understanding, and it may hurt, but it's much more important that we be frank and talk about it, rather than lay only part of the issues out and still have other issues, concerns, or problems. This is our chance to deal with them."

Ozell Sutton


 [Full Interview] [Topic Top]

Things were so hot in the mediation and so volatile, that I decided to call a caucus right there. That's one of the techniques, caucus. I brought the black police officers here, and whites in the conference room. I assigned two staff members to the conference room and I took the black officers, because that's where the interest comes from and they were threatening to walk out. I walked up to the door and blocked the door. If anybody goes out of this room, he'll have to go over me. I know you're police officers and you really can go over me, but I don't think you want to do that. And that's what you're going to have to do. Nobody's going out of this room until we have at least agreed that you should go out. He said, "I've never seen a more determined person than you were. You stopped smiling, and that's the capacity that you have, you smile a lot. But boy, you stopped smiling so fast it got me sweating." Nobody's going out of this door unless they go over me.

Question:
So you gave them an opportunity for them to vent in a caucus or in the actual mediation?

Answer:
I wanted to clear up some issues in here before I went back in there. I wanted the opportunity to convince them that they were saying things that I would clear and that I personally would assure them. Now you're getting away from the processes and talking about 'I'. I said, "I don't think there's a man in this room that does not know that Ozell does not sell the interests of black folk short." I would not sell them short, and their interests short.

Question:
This is in caucus?

Answer:
This is in caucus. Now the only thing I'm talking about here is I will pursue those interests. In other words, your cause.

Question:
Did you feel that it was necessary to say that explicitly?

Answer:
It felt especially necessary to say that explicitly. To let them know that I knew. I even did something that a mediator does not do very often. I went back into my own personal credentials, personal identification and personal credentials, been there. So not only am I not going to sell you short, I'm not going to let that happen in mediation. That way I got them back in the room

Efrain Martinez


 [Full Interview] [Topic Top]

If somebody wants to walk away from the negotiations, do you work to keep them there, or would you say okay?

Answer:
At times when it's happened to me, I halted the discussions and conferred with each side. I think I told you the last time about the superintendent, the parents, and the civil rights group. They both walked out, because in mediating they couldn't decide how they were going to proceed. So we just came up with a way that one would listen to the other for fifteen minutes and then vice versa.

 

 


FOOTNOTE 17: Mediator Comments on the Appropriateness of Mediation in Different Situations

Nancy Ferrell


 [Full Interview] 

You're giving people an opportunity to rise to a higher level and when they see that and they trust that you can take them there, most of the time people will go with you. Now here's the thing that I was beginning to sense the last 3 or 4 years I was doing this work with Justice. Of the people who did not want to rise to that -- or as I just described it, didn't want to come to the table in good faith, there were two different profiles. One was coming from the establishment perspective, saying, "My influence is going to be diminished if this process is put in place because when a broader base of people is in power then individual power is diminished,” if it's an authoritarian kind of power. So, those people are intimidated and threatened by what we do. There were minority people whose power was based in the fight, and if the group begins to rise to a higher level with everyone really working toward the best interest of everyone else, those individual powers will be diminished and they would try to sever ties. So, that became an interesting phenomenon to me in the last 3 or 4 years, seeing that as more and more mediation or conflict resolution or consensus-building or multi-culturalism became a part of the fiber. These individuals began to say, "I'm losing control, I'm losing influence, I'm losing power," and there began to be a push to keep the thing from working. My response to that was usually to go with the group, whatever group they were a part of, and talk about that in private and say without naming any names that there seems to be some sabotage going on. "Can you help with that? Are you interested in helping with that? Because either that person's going to pull the group away or the group will have to move away from that person.” But, I never tried to engage those people. I would try to bring them to the table, I tried to get them in the midst of it and hold them to their higher words.

Leo Cardenas


 [Full Interview] [Topic Top]

Question:
Was there ever a time where none of the major parties wanted you to become involved?

Answer:
A lot of times. Yes. Generally, it was the so-called majority. Because the majority community, school as an example, or a law enforcement agency, they're in control, they have the resources, and they have a goal. They see the disputes as something they can handle, even though in a lot of cases we eventually find out that they haven't been handling it for a long time. But in their minds, they think that they've been handling it and they've been handling it correctly. And as long as they have that attitude, they don't allow anyone else to come in. The other is the aura that exists in many of these groups, but particularly for public agencies that would deal with the idea that an outsider is coming in without them first identifying the outsider and paying for those services. It's just not existent in their day to day work, but in the way that they work and the way that they think. So we have to work our way in, really wiggle our way into a trust level and the fact that we are able to actually help them out.

Will Reed


 [Full Interview] [Topic Top]

that's how you tried to figure out what you were going to do when you knew that, clearly, somebody didn't want you around. You tried to determine whether or not you were going to be playing the enemy, or playing the friend. And then a lot of times, some of the foes came around and decide to work with you after all. Often the foes came around. I know in my situation, I had lots of foes who came around because they came to the conclusion that the work you might have been doing at the time was something that they could buy into, or something that they perceived as worth while. You had to let that happen. You couldn't go in forcing yourself on anybody. I don't care who you were with, whether you were with Justice Department, FBI, anybody. People know when you are a phony. Lots of these people out in the field who are fighting for an issue are more sophisticated than you are, or as sophisticated. So you never go in with the idea that since you are a trained mediator, that you're going to be able to snow somebody about your level of expertise or competence or anything else. The key to all of this is being yourself. People will see that, for the most part. And when they do see that, they're more willing to trust you. But when you go in and try to let them think that you have some special knowledge, which you may have, it won't work. They're going to have to conclude that you have that special knowledge on their own. You can't convey the message to them that, "Oh. I'm special." Because all that does is turn them off.

Martin Walsh


 [Full Interview] [Topic Top]

What do you do when you can't break that barrier and someone says they don't want you in this case, or one of the parties says we just don't want to deal with you." Have you had that experience?

Answer:
I think the hardest thing is less that they are verbalizing that they don't want you in and more the other battle where you can see that they don't want you in and they want to put you off. I think that's the more frequent thing. They will say, "We can handle this," or, "It was an isolated incident." The techniques that I always use are that I don't like to allow them to make a decision for us. I don't want to give them the opportunity of "Yes, you can come in," or "No, you can't come in." I try to put it in a way, "Related to this incident, I'm going to be in your community talking to some people and I'd like to meet with you." So basically, it's not, "Well I can refuse you," as much as you don't give them an opportunity to say "No." But then in the meetings with them, often their reluctance level goes up and down the scale. We try to get as much movement as we can from them and that's why I say in some situations we'll get a conciliation approach rather than a mediation approach.

Stephen Thom


 [Full Interview] [Topic Top]

Do you ever have access problems getting into a case, the parties don't want you there?

Answer:
Yeah, I've got one I just blew. It wasn't necessarily me, but it was blown. I've gone out to a situation where there was a series of altercations at school. Many of the African- American parents were concerned that the school was not properly reprimanding both racial parties. The school where students had been arrested did seem very biased. Even the incident that provoked the violence had overtones of racial bias for one side over another. So, we went out and heard the complainant side and met with all the parents of the children involved. Then we went and met with the institution, and told them what we felt, that mediation would be a viable way to get through this. The institution absolutely refused because they'd had learned of a pending million dollar suit against them. I said, that doesn't pre-empt mediation. You may have this suit, but there are some things that I think we can still negotiate. The institution said to me, straight out, that they totally distrust the parties, and anything in mediation would not be kept confidential and would be used in discovery for the lawsuit. There would be no way that they were going to participate in mediation. What do you do with that?

Question:
What did you do with it?

Answer:
Well what I did was, I said, "If there is this level of distrust, I'll see you either now or I will see you later. Because regardless of what you do, whether you go to court and win or lose, the problem you have at your school site and the relationship you have with the African-American community is not going to be resolved by the courts, so if you feel that the parties cannot be trusted, we can very well wait until that lawsuit it over. But you know, you're not going to solve the problem until you sit down and get some agreement, as to what and how you properly carry out your policies and processes with all students. Until that's worked out, you're going to have to sit down at the table at some point, sooner or later. It's your call. I can't tell you that you have to sit down now."I thoroughly believe that they can wait out the legal process, but the law does not put the community back together. The law does not give the parties a process to really put to rest the anxiety and issues that divide them. So I figure, I will be there sooner or later.

Manuel Salinas


 [Full Interview] [Topic Top]

Question:
If you didn't get the cooperation from the key individual, are you saying that you would back off?

Answer:
Well, I would have to use judgment on that, as to what the community is saying or what's happening. If nothing is happening to a great degree, then I'd back off. If there was a lot happening, and there was a lot of interest and a lot of concern, a lot of hostility, then I would be forced to move forward on another avenue.

Will Reed


 [Full Interview] [Topic Top]

Can you recall any specific time when one of the parties or neither of the parties wanted you to get involved?

Answer:
Oh that happened a lot.

Question:
And how did you handle that situation?

Answer:
Well, sometimes, you go to the other party and deal with that party and work with them until the other party decides to come around. Sometimes they will eventually come around and say, "Okay, this guy's already working with you on this, and he evidently must be on your side," or something like that. But the only thing you can really do is demonstrate to them, the best you can, that you are basically neutral, as neutral as you can be. And it usually just comes together. Sometimes they'll walk away and say, "We don't want to be bothered with this individual." I don't think there was ever a time where any of us, and I say "us" in this situation, because this is kind of universal, it dealt with everybody, for the most part, we never concened ourselves with people who didn't want us.


FOOTNOTE 18: Mediator Comments on Options

Edward Howden


Question:
When you thought of solutions and you didn't see them going that direction did you raise them?

Answer:
Oh I might ask a lot of questions. What's one of the useful concepts, of course, is a reality check. I would use that often, or occasionally at least, in preparatory sessions when a given group, usually the minority agency group or minority community group was shaping up its demands in anticipation of a mediation session. There would often be one demand to fire the police chief, or fire the supervisor of welfare, for example. We had one case that involved a social welfare department in a rural county where such a demand, along with eight or ten other demands, came up, and that took a little doing to deal with. You try to ask how important is that demand in relation to the other eight or ten. In the case I'm thinking of, there were ten or fifteen points on the agenda that were shaped up in the course of a couple of long get-ready sessions. An attorney from one of the public rural assistance outfits helped articulate those concerns and put them in shape, which was very helpful. In that case you try to counsel people and ask, "is this demand within the realm of possibility?" This county supervisor of welfare had been in that job many years, and undoubtedly had high status in the county establishment. Yet the group was unwilling to abandon the demand that he be fired. But we managed to get them to put it at the end of the list of fifteen or so. That leads to another interesting point which applied in this case. Do you submit the demands in writing in advance of the mediation session? I tended to favor not doing so for the rather obvious reason, well for a couple of reasons. One, a demand like that was going to blow it. But even apart from that, if you formalize it all in writing and submit it in advance, you're sort of making it like a legal court process. My second reason for preferring not to have demands submitted in advance of the first joint session is that it formalizes it and gets the other party in a more adversarial stance and lets them prepare to come back with rebuttals, and counter- arguments. I'd rather have that as a spontaneous process. They may come back and object like crazy. But if it's in a mediation process where we're tying to establish some relationships and where I can facilitate it or function as moderator, we've got a better chance of getting something done. In this particular case I was referring to, with the proposed firing of the welfare superintendent, the superintendent was present at the mediation, as well as a key county administrative officer. The group of six or seven Chicano agricultural workers and community people who had brought their complaints about the behavior of the welfare department were also there. We got through the first three or four points on the agenda and we were making reasonable progress when the county administrator leaned over to me and asked if anybody could call a recess and have a caucus anytime they wanted to. I said, "of course," and he called for a recess and asked for his team to see the mediator. So we sat down together, or maybe he just spoke to me privately. His message was that the superintendent had finished reading all the way down the list and had come to the end of the line that said, "fire said superintendent." This guy was very helpful in this whole deal. He said, "This is going to blow it, she's going to walk out and it won't go." What I then did was caucus with the other group and say, "Hey we got a problem." I guess they were willing to set that aside, at least tentatively, and see how we could do on the rest of the stuff. So we resumed. By two or three o'clock that day we wound it up. I went back to the motel room and spent half the night writing the agreement up, which is one of the functions I did frequently. The next day it got signed, we had a deal. So reality checks attempted in advance don't always do it.



Nancy Ferrell


Question:
So what do you do if the person says, "We want to fire the superintendent?"

Answer:
That's not our role. We'll look at that the problems your having with the school district, why you think the superintendent needs to be fired, but the decision about whether of not the superintendent keeps his job is the board’s decision.

Question:
So do you try to get them to define more exactly what the problems are and then try to propose some other solutions?

Answer:
Right. "What is going on that makes you believe firing the superintendent is going to change anything?" "Well, because none of our school kids can ever sing in the school choir. Not one of our children have ever been invited to sing in the school choir." And that's just one part of that coaching stuff. "Firing the superintendent is not something we can deal with. Let's talk about where your concerns are." "My daughter was valedictorian and it was taken away from her, and the superintendent didn't support us." Now you have a specific issue. You can go back and start looking at how that decision was made.



Dick Salem


Question:
Who decides what they need, do you or do they?

Answer:
We always start with what the group says it needs. It would be nice to sit here and say they tell us and we respond, but the reality is when you do enough of these for enough years you can sort of pretty well see what’s needed and what’s happening and you can lead the community group into knowing what it needs very often. One simple thing is helping a group understand it needs a good agenda if is going into negotiations, with or without a mediator. That grievances should be presented in a way that they can be responded to. If the agenda is fire the school superintendent, or fire the police chief, you know that's not likely to be achievable. You encourage them to shape an agenda that puts that at the bottom and started with some of the substantive changes they want to see. So you put the achievable at the other at the top of the agenda and push "fire the police chief” to the bottom. When they make enough progress at the top and middle of the agenda, they realize that you don’t have to fire the police chief, if he’ll abide by what you’ve agreed to up above on the agenda. So that’s empowering, helping the group understand the negotiation process. And you’re leading the group that way, certainly. You’re saying, "I know what’s best for this group in this negotiation.” I’ve never seen a group when we suggest resources that are available that wouldn’t be eager to accept them, if they were serious about resolving problems. Sometimes it was a consultant we identified who could help them, someone who had resolved a similar problem in another community, or an expert in policing or schools. We could pay plane fare and honorarium. "We’ll pay this guy’s plane fare to come over to talk to you and sit down with you.” In one case, I brought three Hispanic parents from Chicago into Washington DC to meet with the Civil Rights Division (CRD) during Chicago’s school desegregation suit. There they had a chance to meet with the attorneys who were working with the city and putting a plan together. So they felt they had their voices heard in Washington. That is providing technical assistance -- knowing that’s what the group wanted in that case. It was hard to tell whether anyone was listening, but the community members felt they had their voices heard. Now that’s another way of building credibility for ourselves. Before that, trust levels were really low. There was at a big public meeting and CRD had asked me to go; the US attorney had asked me to go. Nobody else in the Justice Department wanted to go near it. So what I brought to that public meeting was the idea that we would pay the fares for three people in your group to go to Washington to talk to the Civil Rights Division and be sure their voices were heard. There was so much skepticism that somebody raised their hand from the audience and asked, "Are you going to pay our plane fare back too?”



Martin Walsh


Question:
How about situations where a party is proposing an agenda that includes something that you view as a possibly intractable issue. How do you address a party relating to that?

Answer:
Often times it comes up in the initial discussion. "We want to fire the police chief." "We want the superintendent fired."

Question:
How do you deal with that?

Answer:
I try to finesse it in different ways by saying, for example, "If we are going to be dealing with the police chief," or the mayor or supervisor, or whoever it is, "let's deal with these issues and the issue of whether the police chief is going to stay or not will be up to the administrator. In the meantime, he is the chief. Do you want to deal with these problems or do you want to wait until someone makes a decision?" Other times I say, "What's the reality of this? There appears to be a lot of support for the chief from the city council. How feasible is this?" I think most of the time community leaders are astute enough. It will be on the agenda, but after that it is the mediator's job to get to the next step. The message is out there. The mayor might say, "Chief John has done a good job over the years?" There is a conversation about it and they get it. It's not one of those things that is usually going to end up as something that is going to be negotiated.

Question:
And on the other hand if one party says "That's non-negotiable, I refuse to discuss it?

Answer:
What I try to do is to get it where it doesn't become an intractable issue. "You can get your message across. You have already said this. You can use a different forum for it, but in the meantime if we are going to go forward and make any progress on these issues, are you willing to let that impair us?" Usually they make decisions to pull back or get the message out. I think everything can be discussed. They want it out there, but I must say that I have yet to have any mediation situation where it just stopped everything. Clarifying it, getting people to talk about it beforehand, realizing the environment, giving a reality check and doing all the things related to it help to finesse it one way or the other.


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