Answer:
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.

Question:
Are the parties able to give input as to how you're going to run the mediation session, or are you telling them?

Answer:
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 that.

Question:
What did you do to open up the line of communication?

Answer:
They ask questions, and they get the answers. The second session was where we would begin 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 take place.

Question:
Were all of those things considered factual information, or were any of those issues ever challenged?

Answer:
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.

Question:
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?

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

Question:
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.

Answer:
The other party is not expected to give any answer to what's being said by the other party.

Question:
Did you ever have a problem where people wanted to rebut? Did you have to control that?

Answer:
I'm sure I did. I can't remember specifically.

Question:
How would you handle that?

Answer:
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."

Question:
Did you ever find yourself assisting one party to try to understand the other party's position?

Answer:
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?"

Question:
Did that seem to help, or were there times when the party who was speaking said, "No, that's not what we mean?"

Answer:
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.

Question:
Did you do anything to try to diminish tensions between parties?

Answer:
As I had mentioned earlier, at times it's all you can do to keep them in the same room. I want 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 frank.

Question:
Once you get past the sharing stage, if that's what you want to call it, what's the next phase of the process?

Answer:
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.

Question:
Okay. So what's the next phase of the process?

Question:
Did either of the parties, or any of the parties involved ever ask you to do things that you were just unable to do and how do you handle such a request?

Answer:
They would try and I really can't think of anything specific but obviously they would try to get you to do things. The way that I deal with that is through establishing the ground rules and the working relationship that's going to occur between the mediators and the parties. In that process I make sure that the ground rules (without being over-burdensome) are clear and definitive as to roles. And I let it be known that that's it. Don't ask me to do something that isn't on this page, you know that kind of thing. Here's my role and I'm very clear. One of the things that I think is actually critical to mediation is that the parties know exactly how their mediator views mediation and how he runs the process, and where the start and stop points are. I'm real adamant about that. Because I communicate that up front clearly and we put most of it on paper and they sign it, usually there's not a problem. It doesn't come up very often that they ask me to do something that isn't on the paper.

Question:
So you come to the table with that in mind and say hey you're signing off on this process we're done with that.

Answer:
We've set the ground rules-- that's it.

Question:
Could you give us an idea of what the basic ground rules are? How would you characterize them?

Question:
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?

Answer:
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.

Question:
How do you do that?

Answer:
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.

Question:
And what are the basic ground rules?