FOOTNOTE 1: Mediator Comments on Deciding Who Should Participate in Mediation
representation ever an issue? Who was going to be at the table and who wasn't?
we had to work the ethnicity out of it first, then the stature of the
organization, how long they'd been in existence, because they were non-profit
and volunteer groups. We were also interested in the type of leadership that
they brought to the table.
You just said something very interesting, "You had to work the ethnicity
out of it." How do you do that?
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.
Did you try to get equal numbers of each race, or did you try to do something
I think proportionate to the organizations who actually signed to be members of
And this was open to anybody who wanted to be included?
Well once the chief of police identified a few people, and we met with those
few, they formed a group. Then we knew who was taking a leadership role there.
There were a couple of people who took on a leadership role. There was a mixed
group, women as well as men, and young people as well as older people. So that
formed el Comite. It was about nineteen to twenty people total.
FOOTNOTE 2: Mediator Comments on Setting Goals for Mediation
In your mind are these solutions or suggestions different from goals?
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.
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.
So how did you set your goals, then, once you got on-site and you'd spoken to
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.
I also knew how to take advantage of a crisis to move things along.
How do you? Tell us the steps to take advantage of a crisis.
Well, I do it all the time. Not only are you interested in resolving that
particular crisis, you are interested in setting forth mechanisms to keep that
crisis from re- occurring. 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.
Yes, so you are strengthening their capacity.
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.
Who decides what they need, do you or do they?
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
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.
FOOTNOTE 3: Mediator Comments on Underlying Issues
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
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.
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
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
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?
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.
And you do this by asking questions, I gather....?
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.
The first issue is historical?
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...
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.
Can you briefly tell us what the other interests were for the groups besides the
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.
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?
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
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."
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 4: Mediator Comments on Evaluating Parties' Goals in Mediation
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
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?
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
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?
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.
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?
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!
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.
Would you have said that to the white caucus?
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.
So you reframed the issue for them in the caucus?
In words that they could connect to.
That's an important piece, the use of language as a trust building tool.
FOOTNOTE 5: Mediator Comments on Addressing Parties' Concerns in Mediation
You mentioned a checklist -- is this a mental checklist that you have?
A mental checklist, yes.
And what's on this checklist?
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
Did you design a plan for handling this?
No, really not. Once they began to ask a few more questions though, and the
people began to ask questions or say " we don't like this, or that, or the
way the department has handled things before," then the only plan that I
had in mind was for me to be able to sell them on the idea that we need to know
more, and the way you're going to know more is through a police assessment. I
told them that we could handle that for them and bring that team together on
behalf of the community and work with the chief to make sure that this is done.
And they thought that would be a very good idea, since they knew very little
about the department, they thought this would be very helpful to them for the
long range, for later on. So we had that done. And the chief agreed on that. He
wasn't reluctant at all, and that's one good thing about it. Had we had a very
stubborn chief of police, it would have been more difficult. There would have
had to be greater protest and for a longer period of time. The protest didn't
last that long. Things were beginning to move in the direction that the
committee felt would be helpful. The chief then was looking for something that
would help him. So it would help both parties.
FOOTNOTE 6: Mediator Comments on Fact-Finding in Mediation
Now in this particular case, mentioning that, did you feel that the conflict
became defined a little bit differently as time went on?
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.
So there weren't any factual discrepancies?
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.
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.
Now once the facts were actually given and provided did the other side accept
those as facts?
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.
So they didn't lose any of their validity?
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 7: Mediator Comments on Maintaining or Regaining Control in Mediation
One I mentioned was the kid.
But what were the various approaches you used for dealing with that?
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.
How does the mediator deal with that problem?
Well, you're a role model, you ease up the flow. You might suggest a bathroom
Then you take the black person aside and say the reason she's reacting this way
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.
Going back to the anger management, when things get really hot in a mediation,
how do you cool them down?
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.
Break the flow. Any other ideas?
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.
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."
Do you have techniques you use for reducing tensions between the parties?
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.
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.
Do you have any examples or guidelines for humor?
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
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
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.
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.
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?
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.
How do you make a judgment call about when to do that?
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.
Interesting story. When you brought parties together when tensions were high,
what did you do to try to facilitate effective communications?
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.
Do you do anything else that you haven't already described to try to manage
really strong emotions?
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 8: Mediator Comments on Mediator Roles
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?
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.
How did you deal with parties who came to the table just giving lip service who
weren't really negotiating in good faith?
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.
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?
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
Were there ever situations where you got people to the table but they weren't
negotiating in good faith?
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.
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.
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."
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.
So you gave them an opportunity for them to vent in a caucus or in the actual
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.
This is in caucus?
This is in caucus. Now the only thing I'm talking about here is I will pursue
those interests. In other words, your cause.
Did you feel that it was necessary to say that explicitly?
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
If somebody wants to walk away from the negotiations, do you work to keep them
there, or would you say okay?
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.