You didn't make
any assessment of
what the most important issues were, and which was next?
No. I would set the agenda for the negotiations themselves. That's not the first meeting
though. The first meeting in the sheriff's office conference room was where they would meet
each other face to face for the first time. There was about a dozen people there. The CRS
guidelines for mediation would've been explained in detail when I made the recommendation for
mediation. I urged them to discuss things, and I gave them a list of about a dozen to fifteen
points. These were really my version of CRS mediation guidelines or conditions. I would
answer any questions they might have on that. It would've been the time
prior to that first meeting when I would've pointed out to the home owners, "There needs to be
some kind of entity that the tribe can deal with, who do you want to be? Can we identify you as
a particular group?" As I recall, the minister was chosen. They chose their own people,
although I had probably been responsible for identifying those who were interested and
urging. I frankly do not recall offhand if I met with them separately, prior to the first
meeting. I would have met with two or three of them to explain the guidelines.
But at any rate, by the time they got to the sheriff's office, they would've known what the
guidelines were, and then in that first session, I would've explained what can be expected. One,
we'd go over the procedures and the guidelines. I would repeat what I had said before, and
hopefully I'm still consistent. I would answer questions they have. Now they know that the
others know that they don't talk to the press. I ask them "Do you agree to these terms?" The
others hear them say "yes" and vice versa. That's sort of the basic, the bedrock for the mediation
has been laid at that point. No discussion of issues, background, or anything like that.
Are the parties able to give input as to how you're going to run the mediation session, or are
you telling them?
Not much room for that. If I am to be the mediator here, I am bound by my agency to
conduct mediation along these lines. In that case I don't think I would get a challenge to that. Of
course there are introductions. People were meeting each other for the first time in many cases.
Usually, they're sitting on opposite sides of the tables. In those days, Henry Kissinger was
running around working out the shape of the table and all that. I never bothered about any of
What did you do to open up the line of communication?
They ask questions, and they get the answers. The second session was where we would
the process of problem identification. And at this point, no discussion shall be conducted about
answers or solutions to any of these. That's something else that will happen later. What we want
now is a free and frank exchange of ideas from both sides. Then I would invite, "Would you like
to start off and list your issues?" They've given them to me individually. They would list the
issues, one by one. A certain amount of clarification would begin to be taking place,
understanding of not only what, but why they're upset. The tribal leadership had never heard of
these tribal fishermen defecating in somebody's front yard in front of children, this was
outrageous, and that sort of thing. A certain amount of clarification and explanation began to
Were all of those things considered factual information, or were any of those issues ever
Oh yes. But I would've stated in the beginning that these are perceptions by the people on
this side of the table and it's important for you to not only know what happened, but to hear these
perceptions and try to understand them.
Heidi asked you a little while ago about
helping the groups prioritize. During this initial meeting, or the second meeting where parties
are expressing themselves, do you allow them to express themselves in the language and the tone
that they choose, or do you try to coach them to express themselves in a certain way?
You've asked several questions. One, the main thing we need to get
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." There would be some opportunity for going into the background of these
issues, too. For example, the disenfranchisement of Indians and violation of treaties, there was
at least some allusion to that. It's important to Native Americans that this be in the background
of the record, even though it may not be dealt with in detail. In any case, if there's time that day
for the other side to give it's listing of issues and concerns, and what and why, then we would go
into that. If at the first session problem identification was not completed by one of the parties,
then we would pick it up at the next session. All of one side identified it's problems in their
entirety, and then the other one would have it's opportunity to give it's side. And to a certain
extent, of course, answers to questions or perceptions would be given.
So I gather that if one side, like the Native Americans, accuses the
other side of doing something, you hold off before the landowner makes a rebuttal statement.
The other party is not expected to give any answer to what's being said by the other party.
Did you ever have a problem where people wanted to rebut? Did you have to control that?
I'm sure I did. I can't remember specifically.
How would you handle that?
Essentially, after making some kind of a statement, saying, "Okay, you will have an
opportunity to answer this a little bit later. Just hold off. The important thing is to get this out,
and then we want you to give your side of this."
Did you ever find yourself assisting one party to try to understand the
other party's position?
I think it's the role of the mediator to restate for purposes of clarification. Sometimes, it's
needed to clarify, and even, "Is this what you're saying?"
Did that seem to help, or were there times when the party who was speaking said, "No, that's
not what we mean?"
Oh, I'm sure that happened. Heck, I'm a non-Indian and have no background. I didn't even
know what they were talking about when I first got the complaint in this. You know what the
title to the case is that I wrote on the file? Beach standing Indian's complaint. Later on, that
didn't mean a thing. What's a beach standing Indian? But they were talking about Indians who
were standing on the waterfront fishing. So I had to learn what a meander line was, and that sort
of thing. They had to explain it to me before I could really go anywhere with it.
Did you do anything to try to diminish tensions between parties?
As I had mentioned earlier, at times it's all you can do to keep them in the same room. I
them to be frank, I want to be in communication, and then frank communication, I'm not nearly
as worried at that stage about the feelings of each other. I think it's more important to be
Once you get past the sharing stage, if that's what you want to call it, what's the next phase of
I wouldn't call it sharing, but explanation of our concerns, our issues, our complaints. That
holds a little different connotation than my sharing these concerns with you.
Okay. So what's the next phase of the process?
After the complaints have all been laid on the table, and there has been clarification about
complaint and the background when we all agree that we've disclosed everything that's
significant, then okay, we close this off. We begin the process of developing solutions. What
are the answers? What are the approaches that need to be made to these questions? Here, the
mediator plays the role of selecting what should be dealt with first. The question always arises,
should we deal with the hard ones first, or the easy ones? If we can get agreement on the easy
ones, maybe we can develop an approach to the hard ones. But not the reverse. Some people
say if you answer the hard ones, everything else will fall into place. I think that's completely
Do you set the ground rules before you get to the table, or is that something that you do
once you get to the table?
I do a little bit of both. Some I will set rules beforehand, but then I will ask at the table if
they have any more that they'd like to add. But the parties are relying on me to control the
process. They really want that. Usually, these groups have encountered each other before and
gotten absolutely nowhere, and both think it's because the other side was out of control. So an
important piece of what I'm providing here, aside from any mediation skills, and my help
identifying interests and the kind of things that you and I might talk about, is that I make sure that
the process is not going to get out of control. "Trust me. They're not going to be able to roll you
over. I'm in control." And I try to demonstrate that from very early on.
That's probably just my style. I know there are other mediators who are much more easy-going,
kind of laissez-fare from the beginning. I start fairly controlling; I hold the reins fairly tightly. As
I see that progress is being made, I loosen up. It can get to the point where they almost don't need
me anymore, and that's fine. It's almost like being a classroom teacher which I've never been,
by the way but if you don't take control at the beginning, then it's going to be very difficult to
get it later. So I start off controlling.
How do you do that?
Oh, just things like not letting somebody interrupt, making sure that if one side has spent
some time speaking, then the other side has a chance to respond to that, designating where people
are going to sit, and then enforcing the ground rules.
And what are the basic ground rules?
The most important ones are: confidentiality, not interrupting, focusing on the issues, no
name-calling, that kind of thing.
Also, if somebody says something that is either very esoteric, or something where I am really not
sure that the other side knows what was just being said, I'll play the dummy. I'll ask questions, so
everyone understands what is going on. To some extent you can see that you need to do that by
watching body language. You can tell when people are confused or angry. Also, if the
community starts making accusations that "so-and-so is racist," rather than just leaving it at that,
I'll ask, "Well, can you explain what kinds of things they do that you see as racist?" So, we
immediately get beyond the labeling to the problem-solving. Or, if the institution starts talking
about their budget restrictions or throwing around the alphabet soup and so-on, if I even slightly
believe that they're blowing smoke, I'll make them define it or explain it. "What does that have
to do with the discipline policy? Why is there a connection there? What would you then need to
be able to deal with that?" So they don't just throw out a lot of regulations and guidelines and
procedures without explaining why that's important. I do this so we keep getting back to the
problem we're trying to solve, and get away from who's right and who's wrong.