How did you deal with issues of confidentiality during your casework?


Efrain Martinez


 [Full Interview] [Topic Top]

Question:
Do you say right up front that all of your conversations are confidential?

Answer:
Yes, but with limitations. They know what I'm there for and what I'm doing. In some instances those groups that maybe have a history of committing criminal acts, I let them know I'm still with the Justice Department and if they do something of a criminal nature, I'm duty bound to report it. But tell me only as much as I need to know to help them and help the situation. With that understanding, I don't want to be part of their strategies and I always ask, "Can I make this public? Is this public information?" No matter who I go to. And they say, "You can tell them this, but don't tell them that." And I respect that. If I don't then I'm no good to anybody.

Question:
Had confidentiality ever become a problem?

Answer:
I don't think so.

Question:
Or were you ever accused of breaking confidentiality when you hadn't?

Answer:
Well, one time, in Wounded Knee, when I was inside the compound. Wounded Knee was like a bowl sort of, and the hilltops were controlled by F.B.I. and the U.S. Marshals. The Indians had their positions below. We had to take cover a lot of times because the bullets would come toward us. There were people trying to come in and trying to get out, pretty much all the time, although the feds had guards on the perimeter. One Indian guy, who was very agitated came to me, he had a weapon and was saying that I had spoken on the radio to the F.B.I. or the U.S. Marshals, and that evening one of their people who was going out had been arrested. I said, "Well, first of all, did you see me use the radio by myself?" He said, "No." I said, "Ok it's a policy I have, every time I use the radio I'm within hearing distance of one of you. So you'll know what I'm saying. How do you know everyone who's in here is what they seem to be?" He says, "Oh, yeah." So I got over that, but it was a direct challenge. I got him thinking about what the circumstances might be. But that's why we always were careful, especially when violence is very close and you don't know what can happen. So be super careful that everybody understands what you're there for. Especially in that situation because they were shooting at the Feds, and the F.B.I.. and the U.S. Marshals were shooting at them, and yet we're with them inside, so it's kind of a strange role. The leadership especially needs to know, and we're there at their request, and with their permission. They felt we were essential to working through all the problems they had, and coming up with some finality to the occupation. So they needed us, and all sides needed us, and that's why we were there. We were taking some risks, but we tried to minimize risk. If they called a truce, we would go out there to monitor the truce. That was the only real time I've been under fire.




Ozell Sutton


 [Full Interview] [Topic Top]

Question:
Can you think about any times when assurances of confidentiality might have gotten you into trouble, or weren't honored?

Answer:
Yes, I have had situations where people complain to Congress about my presence. I've had lots of those where they call their congressman. This is a small agency, it has a hard time surviving with strong congressmen. So I'm ever mindful of that, their position. But nevertheless, I take risks there too, if I decide that the risk is worth it. I do it, and I take whatever consequences it brings sometimes. I've been in those situations.

Question:
Can you give us an example, a confidentiality-violating example, without violating confidentiality?

Answer:
How do you give a confidentiality example without violating confidentiality? Just let me say it this way: what's most important is, the people with whom you're dealing know that what they say to you is not in danger. Under the confidentiality clause, we don't do a lot of publicizing. That way, if you don't make known to the public what you're doing, then nobody comes up and you don't have any support. It's like being in school. I had this problem one time. I thought the teacher had not given me the grade I was due. So when I went out to question that, she looked at me, and said, "now who are you?" How am I going to get the grade I'm due if she doesn't know me from Adam? I promised myself from that point on that would never happen to me again. I would never be so anonymous again, I guess that's the word. My teacher could look at me and immediately know who I was. From then on, I said, get attention, even if it's bad attention, it's better than no attention.




Dick Salem


 [Full Interview] [Topic Top]

Question:
Did confidentiality ever get to be a big issue?

Answer:
No. Seldom was it a big issue.

Question:
What kind of assurances did you make to the parties about confidentiality?

Answer:
You would make it clear, if they didn’t know already from having worked with you before, that anything they tell you would be held in confidence. Very often we would make entry into a case by a phone call from a person in the minority or church community. While conducting the assessment, we would call the establishment party and tell them we had heard there was this problem. "Oh, where did you hear that?” And you’d invent language, or pet phrases and just talk generally, but you would not reveal who alerted you to the problem. When asked, "Who have you talked to about this,” You might respond, "Well, a number of people.” You try not to say who you spoke with or met with if you think it will create a problem. Sometime we would plan an on-site visit to start late in the day when the offices are closed. We would call ahead and tell the city office we would be arriving Tuesday night and would like to meet with them first thing Wednesday morning. Then on Tuesday night you could meet with the community people who may not be available during the day anyway because they’re at their jobs. You’re up until two in the morning or until midnight working. And then at 8 in the morning when you see the city official you say, I got in last night and had a chance to speak with some of the people in the community who are concerned a bout the problem. That way, you didn’t violate protocol by not seeing him first, especially if it’s a mayor. Sometimes it was important to see an official first, but if it wasn’t critical, then you try it the other way and you get the community perspective of the problem before you meet with the public official.




Stephen Thom


 [Full Interview] [Topic Top]

What is your rule on confidentiality?

Answer:
Typically, it's that we don't want anything that is being discussed here relayed out of this room. We certainly don't want anything that is said specifically affiliated with any person. If there is any sharing of the content, it's in a general context and only after the mediation is completed will we make any public statement. That's pretty much it.




Stephen Thom


 [Full Interview] [Topic Top]

I think as long as they don't talk about the specifics of "who said what?" --the summary statements of the agreement, I think they're talkable. I don't make any absolute rules that you can't talk about anything, but I certainly don't want the personal affiliation of what's being said or the specifics of what was said in any way to become public. Only what I give you in summary form and what we agree upon, upon closure of the agreement should be shared.





Nancy Ferrell


 [Full Interview] [Topic Top]

Q - Now how did you deal with what was happening at the table being confidential, yet people had to go back to their constituencies and fill them in? A - Well, there was a discussion at the end of each meeting about what kind of summary information would be helpful to solicit input from the parties. And anytime there was a group of two or more, confidentiality became almost a moot point. Twenty people have heard it, they can't take this and use this against you in court because it's within the context of mediation. But they certainly can go find it out somewhere else, now that they know it. So, there's a kind of a risk at the table, regardless, and when it's involved the whole community, you've got to keep the community involved with feedback. There are conversations that occur where there may even be an intentional, "This definitely needs to be held in confidence in this room or it's going to create more disharmony, more problems, and then we're back where we started." Generally, there's a clear agreement that we need to share this about what we've done, about what we've accomplished, and this is what we're working on. Then we need input from people on whether they feel comfortable about what we've agreed to, and what kind of suggestions they want you to bring back to the table. Confidentiality, in the strictest sense, is generally a one-on-one kind of conversation. Or one group saying, "I don't want you to tell the other group that I would do this. I don't want you to tell them that I would." And again, if you violate that, they're going to find it out and you don't have trust anymore and you don't have any currency anymore. I used to say if you violate the trust of one superintendent, after the next superintendent's meeting for the state, you might as well move on to another state. We have organizations that talk. "Yeah, right. She came over here and this is what happened to us." And so you don't have a job if you don't honor that confidentiality and the trust relationship. Q - And do you tell people about that right up front, that all of your conversations are confidential, or do you wait until they ask for confidentiality? A - It's part of gaining entry, that there's a safety there, that you can confide in me and that I can help you. The more you trust me to really understand your position, the better. And that will be held in confidence. Now I may, at some point, come to you and say, "I think if I could share your perspective on student selection process, it would be helpful. I think the community would help us move along a little bit. Are you willing for me to share that? With that specific intent?" If they say no, I don't share it, it can't be shared. If they say yes, then I can go back and share that perspective. And there are many instances like that where I have, in the dance, been going back to one or the other and said, "I think if I could share that piece of information, it would move us a little further along. Are you willing to let me do that?" Q - And presumably, they usually say yes. A - Generally, yes.



Renaldo Rivera


 [Full Interview] [Topic Top]

Question:
On the issue of confidentiality, do you find situations where it's challenged or you feel the need to violate it?

Answer:
I never feel the need to violate it. At CRS by statute we are not permitted to.

Question:
Have you ever had a situation where you felt the need to violate it?

Answer:
No, because I've been in situations where if I were to violate it, it would help things move along at least in terms of what I perceived to be what's best for the situation or what I have perceived to be what's right or wrong. Remember, I said earlier, what I perceive to be right or wrong is only based on what people have told me in my own experience. If you know the process and you've been through it enough times you know better, or you should know better. The example I give is two parties in a divorce; the only people who know what happened in that relationship are those two people. What they are telling you is the point of view that they want you to hear. I don't think it's significantly different often times, although you can have insight to human nature and the kinds of problems you're going to have in a relationship, you may not know what went on in that relationship and that's similar to what's happening in a community setting. You may have large degrees of experience and have good ideas of what's taking place and you've seen similar dynamics but you don't know all the particulars.




Stephen Thom


 [Full Interview] [Topic Top]

Usually after we go through the ground rules and there is concurrence and everybody understands, I ask if there is anything else we need to put in the ground rules before we go. Usually the only thing they question is confidentiality and most of the time that's the one that gets the most confusing.





Bob Hughes


 [Full Interview] [Topic Top]

Are those meetings private and confidential at that point, once you decide to come on sight?

Answer:
Not necessarily. At that point, you're just talking, discussing the situation with them. You're not in the group. I would offer confidence. I remember in this particular case, I would say, "If there's anything you wanna tell me in confidence, I'll keep it in confidence. I won't repeat it to anybody." When that seems to be needed for the purpose of getting communication or frankness and openness, I would certainly do that and respect it.

Question:
Is it commonly needed?

Answer:
No.




Bob Hughes


 [Full Interview] [Topic Top]

How did you deal with confidentiality, in the context of negotiations?

Answer:
As part of the ground rules, this would be what we would talk about. "If anybody feels that they cannot make a statement unless there's an assurance of confidentiality, I think we ought to respect that, to accept it as confidential and not to be repeated outside this room by anybody here." That's going to sound real hollow to people who don't trust them anyway, "I discourage the use of confidentiality, because there is a need for each of the parties during the negotiations to keep their constituencies generally informed about what's happening inside. Because they're not represented there, they need to know. Ultimately, they will presumably be involved and approve or disapprove of what you do, what we do." So I say, "Don't tie your hands by using confidentiality more than what is absolutely necessary. Sometimes there maybe a need for it, in which case, I think we should be willing to give our word and we will regard it as confidential, not to be repeated."




Efrain Martinez


 [Full Interview] [Topic Top]

Have you ever run into a situation where you're doing well at building trust between the parties and then one of them does something that breaks it all down? They violate an agreement or something they said they were going to do, or they leak information?

Answer:
There might have been where they perceived that there was a breach of confidence. We analyze whether there was or wasn't, and if there was, what effects does it have on the overall goal that they're trying to achieve. If they see it to their benefit to keep discussions going because they see they're benefiting, although somebody slipped up somewhere, then it's not really important when you look at the big picture. But they have to decide that. Since discussions are voluntary, they can withdraw any time. They have to decide if it's worth it for them to keep going, in spite of the fact they thought something had occurred. But also you can have them talk it out and maybe it was a misunderstanding, it wasn't that person's perception that what he or she was saying was violating the agreement or there was a breach of confidence let's say. They need to see that by continuing the dialogue everybody's going to be better off.




Werner Petterson


 [Full Interview] [Topic Top]

Question:
Well, let's move to your favorite topic which is confidentiality. Can you recall a time when assuring confidentiality created any difficulties for you in this particular case?

Answer:
No, no, not in that case at all.

Question:
In general, what assurances did you make to parties about confidentiality?

Answer:
Right up front, I would always introduce CRS and say that we operate under a code of confidentiality. In talking a problem through, I would never represent to one side what I was sharing with them, not unless the parties said it was okay. I would indicate that this idea is coming from another party or that this was some piece of information that was shared with me. If we were working through a problem or we were talking about something, I would ask before I left a meeting, "is this something I can share?" My sense is that if people understand initially that this is the way you operate, they will tell you right up front that this is just for your ears.

Question:
So, you're really talking about information obtained in caucus, as opposed to a general session?

Answer:
Yeah, I think.




Ozell Sutton


 [Full Interview] [Topic Top]

Question:
Switching gears, did you ever, how did you deal with issues of confidentiality in your practice?

Answer:
That's one of the things that is CRS's power. I am careful with confidentiality. If somebody tells me that someone is hooded in the Asian community, it is not to be discussed outside of that. One of the things is that I found that we had to do at CRS, back in the old days, even in our old reports, we didn't use any names. Because once I put your name in my report, I've lost all control of what is going to happen to that information. So, I talked about situations and not people.




Will Reed


 [Full Interview] [Topic Top]

Question:
Was it essential for you and CRS employees to let the parties know that all information was confidential, or was that something that was assumed?

Answer:
There were times when the big shots, the Harvard boys, the real educated Native Americans came across, you'd have to explain that to them, like the guy from Harvard. And there are quite a few Native American Harvard attorneys. I don't know if you're aware of that or not, but there are. Very sharp. And as a matter of fact, you can go to the Native American Rights Fund, there's some really sharp attorneys there. We did a lot of work with them. And they would ask a lot of hard questions. John Echohawk and people like that, they're really sharp. But then you had other groups out of Seattle and out of the Dakotas coming in and they were pretty sharp too. And they were the ones that had the least trust. And that's exactly the way they acted too. They felt like educated people who were suspicious of everybody, didn't trust anybody. And you couldn't blame them.

Question:
Are you implying that that population is more difficult to convince that things would be confidential?

Answer:
Of course.




Nancy Ferrell


 [Full Interview] [Topic Top]

Question:
How did you deal with confidentiality in this case? Were the discussions around the table all confidential?

Answer:
Everything except what became written documents was considered confidential. Anything that was the workings, the process, the exchange of dialogue was considered confidential so that it didn't become gossip outside the room. Any contact with the media was directed toward me until it was over.






Leo Cardenas


 [Full Interview] [Topic Top]

Question:
How did you deal with issues of confidentiality during this particular case? Did confidentiality ever become an issue?

Answer:
I don't recall that it was ever an issue, because we started with a public forum, and ended up with an agreement. Initially the meetings were seen as an agreement, to work further on the issues at the table, but not to reduce it formally to paper, and certainly not put a dollar sign to it.




Bob Ensley


 [Full Interview] [Topic Top]

Oh yes. They'd test you. They would test your confidentiality. There's so many little things that you have to be aware of. They will tell you something and if you go to the sheriff, the chief of police, or the mayor with this information, you know you've been set up.



Bob Hughes


 [Full Interview] [Topic Top]

Did confidentially ever become a problem? We talked about it some yesterday in terms of the fact that you try to avoid it when you can, but did it ever become a major issue?

Answer:
I don't think a major issue.

Question:
Was there ever a time when you insured party confidentially and you were unable to maintain that? Where something happened and one party felt that you weren't holding true to your word?

Answer:
Accusing me of violating confidentiality?

Question:
Yes.

Answer:
No, I don't recall any.

Question:
Or the other groups. Did they ever accuse the opposing group of violating confidentially?

Answer:
I can't remember off hand. There may have been concerns about the possibility of it, but as I mentioned earlier it never was a major issue. Allegations of violation of confidentiality I don't think ever became major issues.

Question:
Was it something you could just dismiss as something as not being true, or did you just not ever address it at all?

Answer:
Oh if it was of concern to one of the parties I might raise it during a joint session.




Ernest Jones


 [Full Interview] [Topic Top]

Question:
What about confidentiality in this particular case? What was its role? Was there ever any time where you needed to keep a certain body of information separate from another group or another party involved without letting the other person know?

Answer:
No it wasn't an issue. I suspect the reason that it wasn't an issue was because there was such a limited level of organizational protesting. If memory serves me, a good part of the protesting was by groups we had never heard of before.




Efrain Martinez


 [Full Interview] [Topic Top]

Yeah, I guess back at the beginning in 1973 or 1974. After Wounded Knee a super looking Indian turned out to be working for many years with the F.B.I., not an agent. He was portraying to be a super Indian, security, militant groups, but I already had adopted this point of view of being careful, but then I looked at the last four or five months, and thought what did I tell that guy?

Question:
How does that effect your job, and the ways that you do your job?

Answer:
It's just a part of it, wherever I go, whoever I talk to. It keeps me really clean that I can back up whatever I tell anybody. I tell them in private and if there's something confidential that they're telling me I always say, "Can I share that information with the other side?" And they tell me yes or no. "Can I even tell them that I'm talking to you?" They say yes, or they'll say no, and I protect that, but I assume you never know.




Manuel Salinas


 [Full Interview] [Topic Top]

Or "I'm going to tell the chief that this is what you're going to do." Because whatever they tell me, they tell me, and that's where it stays. Whatever the chief tells me, I don't tell them, they can search that out themselves.



Manuel Salinas


 [Full Interview] [Topic Top]

Question:
What assurance did you make to the people about confidentiality on either side? A.I assured everyone that everything they said was confidential.

Question:
You said that verbally?

Answer:
Yes. That's one of the things that we have to say.













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