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Did you ever deal with a conflict that seemed to be truly intractable?
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Julian
Klugman
[Full Interview] [Topic Top]
You can't mediate law
violations. The woman who was killed at Riverside, the black woman in the car, and they said
they thought she had a gun. You can't mediate that. You prove it or you don't prove it. You
can't mediate civil rights violations. You can mediate arrest procedures. So you've got to
separate that out. You can work on complaint procedures. Non-negotiable demands, that's not
mediation. You want a police review board? You've got to have the political clout to
do it. The
cops will fight you every step of the way. You can set up an advisory committee.
Julian Klugman
[Full Interview] [Topic Top]
So what were the issues?
Answer:
The issue was police violence, their arrest procedures, their use of force. That agreement is
very detailed in terms of how the police operate. See, you can't mediate criminal acts. That's
why we took the awards out of it, and any criminal aspects. Some people got fired from the
police department. The chief got forced into retirement.
Julian Klugman
[Full Interview] [Topic Top]
{Julian Klugman
Non-negotiable issues are not amenable to mediation. You either have the political power to do
it or you don't. That's where the mediator is a reality agent. The issues have to be issues you can
mediate. Someone may want to mediate the beating of so and so. You can't mediate somebody
getting beat up. You can mediate arrest procedures, you can mediate use of force, but you don't
mediate individual complaints.
Nancy
Ferrell
[Full Interview] [Topic Top]
Question:
We
talked yesterday about the theory we developed, based on talks with a lot of people, about what
we call intractable or resolution-resistant conflicts. We came to the conclusion that conflicts
were more resolution resistant if they involved very high stakes and distributional kinds of
questions. They were also more resistant if they involved fundamental moral differences, or
what we call domination conflicts, pecking order conflicts, or identity conflicts. All of these tend
to be involved in race issues. I threw this out at you yesterday, and you said that the factor we
hadn't been thinking about was the need for relationship. If there was a need for relationship
between people, then they would be willing to negotiate on those things. Are there other factors
we're not thinking about?
Answer:
Another factor is the party’s or the individual's ability to look
beyond their current power position. If they can't perceive themselves in an honorable way,
beyond this entrenched position, then the issue's not negotiable. That's why I always ask, "What
is in your interest?" If I can't help them identify an interest that serves their needs beyond this
entrenched position, it won't work. I can explain to them, "You have the power to direct
authoritarian decision making on this plan, but what is it getting you? What might happen if
you're willing to move in a different direction? Is it worth that?" If they say it's not worth that,
then I'll tell these people what to do. If they don't do that, they're out of here, they're not going to
negotiate. Again, at that point, I'm not looking for them to understand the other party's interest.
I'm looking for something to catch their interest. So if they're so entrenched that they can't see
hope of personal interest served -- beyond this entrenched position -- they're not going to move
out of it. That's when I would say, "Call me."
Question:
You mean if they change their mind?
Answer:
Yes. I think one of my propensities was to keep moving beyond
their real interest. They would have to be really overt to me and say, "Go away." As long as they
just danced around it and kept the door open, I just kept moving forward. Generally that worked
out, although sometimes they slammed the door. I think that's one of the skills of the mediator,
to understand whether or not it's mediatable. If you can’t help that party see beyond the
entrenched position, then it's not going to be mediated. I use it in the 40 hour mediation class.
For example, one of the barriers may be authority. It's a big rock. Here's the mediator, they're
the fulcrum underneath this lever. As the mediator, I'm trying to get this party off of its
entrenched position in order to see the benefits of the mediation. If I can't come up with
something to put on the other side, then it won't level out and it's not going to work.
Answer:
So the mediator is looking for a leverage point to move people out of their entrenched
position, to get them to consider a negotiation. In family situations, children are often the point.
Sometimes it's money. "How many resources are you going to use supporting that intrenched
position? Are you willing to consider another option?" So you've got to find that leverage point.
If you can't find it, and I don't say many things absolutely, but that's where you would have an
intractable conflict. If they had found that point already, they wouldn't be there. So, all your
incredible skills have to involve helping find that leverage point. It's either going to be a
common interest or a personal interest. A common interest gives you the possibility of a richer
mediation. A personal interest can at least get you to the table and create some sort of
contractual relationship to the conflict. If you can get them toward a common interest, that's
where the payoff is. That's when I try and transform those relationships by the process. But
sometimes the best you can do, because of personal interest, is to get to some contractual
relationship. It's better than nothing.
Abortion is another example I use. With the abortion issue, there is no common leverage
for either side to move off that intrenched position. You're wasting your time. The best you can
do is work with the majority of people who are in the middle and try to bring reason to the
extremes. That's what has happened in these big international affairs, like Kosovo. They don't
have a middle. In Ireland, there's become this middle group who says these intrenched positions
are killing us. That's where you need to start focusing your energy, is in that middle group, in
helping and nurturing and supporting. Then the light's on, and these two intrenched positions are
no longer acceptable and the community often has to move on beyond them. They'll still be
agitating back here, but the group as a whole has been able to create some life to move forward.
| Bob Hughes
[Full Interview] [Topic Top]
Have you ever tried
mediation and it failed? Or have you ever tried conciliation and it failed?
Answer:
Oh, plenty of cases of conciliation, but I don't know what they were. I conveniently forget
those. If I apply myself, I might come up with something additional. The only
mediation case that I can recall offhand as failing was when I was under a lot of pressure. I had
very little time to assess and to meet with the parties. This was an Indian fishing rights issue in a
fairly small community. When we got to the table, it became evident early on that these
property owners had real little interest or feeling that this was a problem for them. The
complaints had come only from the tribal side. There was only one Indian tribe involved in this
case. I simply didn't have time to assess it adequately, and this could be part of my fault that I
had not given an adequate explanation or a clear explanation of the guidelines of what mediation
is about to the property owners. Therefore, they did not have any real understanding of what we
were about. They should have been able to see that if we have an agreement, we might avoid
problems. But they felt like they didn't have any problems at the time. But in any case, there
was no progress taking place and there was no problem of identification from the standpoint of
the landowner side, and there was obvious disinterest in being there. And as I remember, I
didn't feel well about my own role and the explanations I had been giving. As I recall we spent
an hour or an hour and a half, and that was probably about it. I then adjourned without really
bringing up any confrontation with them. I just adjourned and did not set a time for any next
session.
Question:
So what happened to the grievances that the Native Americans had?
Answer:
They were of a temporary nature, I know that. The problems would be seasonal, and the
area
that they were concerned about accessing was a fairly small area and it did not appear to be of
great significance to the tribe. They could easily do what they had been doing for the past two
decades, and that's fishing in areas where they weren't being confronted. But I felt bad about it
and couldn't regenerate interest in coming. I didn't feel like there was any interest in pursuing
it.
Wallace Warfield
[Full Interview] [Topic Top]
Question:
What about the opposite? "If you come in here, I’m going to
complain to my Congressman.”
Answer:
Yeah, that happened a lot.
Question:
Did it affect your position?
Answer:
Sometimes. Depends on who the person was. It depends on what kind of reputation you
thought you had with that Congressperson, in general. If you thought you had a pretty good
reputation with that Congressperson, you could say – you wouldn’t be flippant about it, at least I
hope you wouldn’t be – "I think that if that’s what you want to do, you can certainly do that. I
think that CRS would do a good service if they were needed, but I can’t stop you from
complaining.” Congressional officials were much more even-handed then I think most people
gave them credit for. Most of the time, they would have a staff person call and the staff person
almost invariably, I would find, would be even-handed. Even from relatively conservative
Congress people who believed in the classic low profile of the federal government. They are
professional people. They are saying, "We’ve got this concern. This complaint came in; can
you give us some idea of what you are trying to do there?” So you explain it. I rarely found that
we were asked to get out of a particular situation by a Congressperson. Rarely did that
happen.
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