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Can you explain the difference between conciliation and mediation?
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Wallace Warfield
[Full Interview] [Topic Top]
Question:
Explain a little bit more about the difference between
conciliation and normal mediation. Linked to that, you implied, I thought, that a mediator must
be neutral but a conciliator doesn’t need to be?
Answer:
Well, sort of. The old CRS training manual, which you should take a look at, which I’ve
got up here, draws a distinction between conciliation and mediation. If I can remember, just to
sort of paraphrase, conciliation was thought of as being a more informal, more reactive response
where there was not necessarily a formal agenda, and where the particular steps that one goes
through in the mediation process would not necessarily be there. In other words, it wouldn’t be
a formal convening. There may not be a bill of particulars, there may not be a kind of recitation
of the mediation process (who you had a caucus with, for how long, expectations and so forth),
and probably in a conciliation, not a written formal agreement. There may or may not be any kind
of self-enforcing mechanism as a part of it, whereas mediation would have a much more formal
kind of construct.
So in my sense, the comparative informality of conciliation, from that definitional
perspective, meant that the intervener could be a little bit more informal, could have the latitude
to advocate for one side or one idea in ways that you couldn’t do in a more formal mediation
because expectations of behavior of the third party would be different. So in the formal
mediation, there was an expectation. These are all generalities – there are huge variations on both
themes. Some people have taken mediation nowadays much more broadly. I think mediation
has a much more generous interpretation than it may have had in the early days of the conflict
resolution business, in the professional part of the field. Formal mediation restricted the behavior,
not only of the parties, but also of the third party as well. So there were expectations about your
behavior -- self-enforced expectations, not only expectations by the parties, but more a kind of
built-in ethos about how one behaves ethically as a mediator, which is much more constraining in
that sense.
Question:
What part of that was there for conciliation?
Answer:
Less of it. I mean, you couldn’t do anything you wanted. You
couldn’t just go into communities and become a sheer advocate. There were examples of CRS
people who did some egregious things, because they were not able to draw that fine line. It
certainly wasn’t a bright line, between a kind of allowable advocacy and impartiality.
Allowable advocacy was useful in reinforcing a voice from a low-power minority community,
because you had certain legitimacy: You weren’t from that town, you represented a very
auspicious federal agency, and you were, in fact, an authority whether you cared to acknowledge
it or not. What that did was to make your advocacy comparatively more acceptable, in that sense.
Whereas I think that in a more formal mediation, the construct of mediation would sort of
mitigate your ability to be able to do that.
On the other hand, CRS people, many of them being minorities themselves, came in with
various degrees of arrested advocacy development on their own part. So they were hugely
frustrated. They would get out into the field, and they would do things like, and these are true
examples: One fellow, in an open-air meeting, made several pronouncements about resources he
was going to be able to bring to this particular community. In effect, he called the establishment
everything short of racist pigs. Now what made him think that wasn’t going to get reported
back? Well, once that happened he was finished. And he actually did no service to that particular
community. His actions were self-defeating. Because it became very clear, not only in that
instance but actually in other instances as well, that even the minority community needed the
CRS person to be someone who could articulate their concerns in forums. Not only to create a
forum for them to be able to do that, which they were not successful in doing themselves, but at
key points be able to refine that articulation to the establishment’s side. But to be able to do
that, you had to be accepted by the so-called establishment’s side, so if you were no longer
accepted by them, you simply destroyed your purpose for the minority community as well.
| Manuel Salinas
[Full Interview] [Topic Top]
Answer:
About the only thing that actually changed from the time that I
left CRS to where we were at the very beginning were the projects that we would take on. But
prior to that it was approximately the same. I started off as conciliator, and then later on they
changed all conciliators to conciliator-mediators. But we did a lot of conciliation work all the
time. In conciliation you don't actually get into a mediation case where the parties sit across
the table and you're mediating the case. Rather you're doing conciliation, which kind
of revolves the problem before it even goes to mediation. Or it may never get to mediation,
but in the meantime you're finding solutions to the problem and so mediation is not needed.
We did a lot of that. Actually, I continued to do a lot of that thereafter because many situations
do not need it. It often seems that it gets to resolve itself as you deal with the parties.
Question:
In your mind, where did conciliation stop and mediation begin?
Answer:
It would be where you're not resolving the problem and therefore you could better serve the
community if you bring them together face-to-face and try to hammer out the differences.
Mediation occurs because you haven't been able to resolve it through conciliation. The
situation is still there, the problem is still there.
Question:
Would you think of the police shooting case as conciliation or mediation?
Answer:
I think it would be more conciliation than mediation because the group never really sat
down together. It was more of a conciliation and working with the parties to find a solution to
the problem. So that's how it was.
Ozell Sutton
[Full Interview] [Topic Top]
Actually, let's focus back on the Memphis
situation. Did you think of yourself as a mediator, or how would you describe your role if you
had to come up with a title?
Answer:
You know, we used to try. And in recent years, we have combined the two, but in the early
years, they were not combined. A mediator, in the early years, was a table condition.
Conciliation was to move between the parties.
Question:
Okay, so what you called "street mediator" before would be a conciliator?
Answer:
Absolutely, yes.
Question:
Okay. Actually, before we move to trust, would you speak a little bit about the difference
between street mediator/conciliator and table mediator?
Answer:
Well, table mediation is when you bring the two parties to the table, sort of like labor
mediation. Street mediation is when you move in between the parties, rather then bring the
two parties together. Quite often, you don't have enough consensus to bring the two parties
together. If you did it would be much more explosive.
Question:
So consensus, you think, is necessary for table mediation?
Answer:
At least enough consensus that they both would come to the table. That's a big step.
Dick Salem
[Full Interview] [Topic Top]
Then just recently you said you
only did 6 or so formal mediators. So presumably most of your stuff is what you call "informal
mediation.” How is that different than formal mediation?
Answer:
CRS defined mediation and had a series of activities. There was conciliation, there was
pre-mediation, and there was mediation and follow-up. It was quite structured. In formal
mediation, you have an agenda, you have ground rules, you have parties agreeing to all of this.
That was highly structured. Much of what we did never reached that level. Yet you had the
same behaviors in bringing parties together and getting them talking around a table. Now was
Skokie a mediation? Sure it was, but not by this formal standard. Parties wouldn’t come
around the table. So you did Mediation things and the definitions become blurred, but I don’t
want to get hung up on that. There were formal mediation that I did and there were informal
mediation, or conciliations, call them what you want.
Martin Walsh
[Full Interview] [Topic Top]
What's the difference between a conciliation approach and a
mediation approach?
Answer:
I guess in our conversation here, even though we are changing the languages within CRS to
include mediation across the board, when I try to differentiate between conciliation and
mediation; mediation is the formal or informal process of people dealing with one another across
the table. It's a negotiation and problem-solving process involving the parties communicating
with one another. Most of the time directly, sometimes indirectly. Conciliation is everything
else. It can be the training that did not go through both parties; it could be technical assistance
that is provided in a situation. Much of our prevention work is conciliation because we don't
necessarily bring the parties together.
Question:
Are you saying it's anything happening before the parties began to sit down to talk?
Answer:
Well, we try to differentiate the assessment process from conciliation or mediation even
though they run together very often. I distinguish the assessment as all activity that leads up to
our making a decision as to what we are going to do. That usually entails acceptance by at least
one of the parties. Everything after the assessment is the conciliation process or the face-to-face
or problem solving process which we call mediation.
Stephen Thom
[Full Interview] [Topic Top]
Yeah. Conciliation is a very nebulous term because it includes a
whole variety of ways that you help resolve problems and although it's technical assistance, I still
think it's a way of helping the institution to resolve it's problems. So I think under conciliation
comes technical assistance, training and all the other things, versus mediation which I think is a
very formal, at the table discussions with the knowledge that our intentions are to come up with
an agreement that will give us a long term relationship and a set of protocols to work through to
insure that the issues are resolved.
Stephen Thom
[Full Interview] [Topic Top]
You
had a question about mediation versus facilitation and I think mediation and facilitation are two
different things. I think mediation is the umbrella and that facilitation is underneath it. When I
teach mediation I really teach problem solving and then I teach problem solving and how you
facilitate problem solving and then I teach what skills you need to help others problem solve.
That opens up communication, listening, and inquiry skills that are transitioned into the problem
solving process. It's a very easy frame that people can follow. I say, "You're a facilitator," and
some mediators get mad at me and say, "No, I'm a mediator!" And I go, "Okay." You can be a
lot of different kinds of facilitators. When you are a facilitator of a problem solving process for
others, you're a mediator.If we go to a formal written agreement -- and I think that's how CRS
distinguishes mediation from conciliation -- if we go to a formal table in an announced process
with ground rules and a written agreement, then we are into formal mediation. At one point we
had an agency with a selected few mediators and they were outstanding if they did three
mediations a year. Have you ever worked with Ed Howden (former
CRS Regional Director)? Boy, he wrote a thesis when he wrote his agreements. He was an
excellent writer. I have some of his models that I keep because they are just gems, but
bottom line the agreement solved a set of problems.
Question:
Where do you see negotiation fitting in with facilitation and problem solving?
Answer:
I think we are talking semantics because negotiation is the give and take that dances in
between the problem solving process. We know there is a process and when we teach mediation
we say, here is the process. You go into entry, you gain agreement to cooperate, you go into
discovery, you analyze the issues, and you go into resolution and alternatives and then you go
into closure. Those are the standard steps that we teach in mediation. Juxtaposed to that whole
process, you identify the issues, you analyze the issues, you seek alternative solutions, you select
the best solution and you go to closure on that. They say the same thing only there is a little
different text, but it's really a problem solving process. So, when you're facilitating this for
people to understand mediation quickly, it's easier to say, "How do you solve problems?" and you
work through the process and say, "Does this make sense to you? Now, let's make you a
mediator. Flip it around and start dealing with someone else's problems." So it's a real simple
and quick process and doesn't get too convoluted. I think we can make excellent mediators out
of those who understand that and what's different about that. Once we can get the simplicity out
of the way we can go into the fine tuning of the techniques, approaches, and strategies.
Mediation emphasizes two critical differences: 1) soliciting the solution to the issues from the
disputants and 2) systematically getting an agreement and closure to the problems. That's why I
think you can still think of mediation as facilitated problem solving.
| Martin
Walsh
[Full Interview] [Topic Top]
We were not able to process that into mediation. There were other activities which
involved CRS that took place. We helped the governor's blue ribbon commission looking at
community relations around the state. We lowered our goals and objectives into keeping the
peace, keeping communications open, making sure people understood the reason for the U.S.
Attorney not taking the case for investigation. That was a conciliation approach. I didn't handle
it. The conciliation approach is often not conducted at the highest level. It doesn't lead to
development of relationships between the authorities and community leaders. The continuing
conflict and unresolved differences are probably going to have to be revisited some other time.
| Angel Alderete
[Full Interview] [Topic Top]
There were times -- two times -- where somebody else started the
process towards mediation and then when he got very close to it, he called me in, or she'd call
me in, and we'd work to get it towards that end and I would mediate. That was when we had
conciliators who were conciliators, and mediators who were mediators, and the differentiation
was that I did the official hard-core mediation and they did all the conciliation work.
They got
everybody ready and to the point where they were saying, "Yes, we're willing to sit down and
discuss." Then I would come in.
Question:
So you wouldn't have met them before that?
Answer:
Maybe I'd have met them once or twice, but when they said, "We're ready to mediate," I
would
come in, already having been briefed by the conciliator. Then I would meet them once or
twice just to get the feel. Then it would be my job to then talk about what the issues were. The
Texas thing happened just like that, only that was an easy case.
Julian Klugman
[Full Interview] [Topic Top]
Question:
Now one of the things I was trying to get you to go into was,
your problem solving approach
which is different from mediation.
Answer:
It's not table mediation, there is mediation going on though, but it's multiple party and it's not
me and you. It's different.
Question:
When do you use that?
Answer:
That's a good question. When do you use mediation, and when do you use alternatives?
Multiple party disputes, there's a lot of things going on in there. Some people try to handle that
in different ways, particularly the environmental mediation people. They love to do that. Of
course if you can spend six months to a year to do every mediation case, and some foundation
will pay you for doing it, you can do that. We didn't have that luxury. Plus what we're dealing
with is violence. That's when people were ready to move when there was violence. Come in and
work this interracial problem. You know when they've got interracial problems when they're
beating the hell out of each other. It's in the newspaper. Then you come in and you move. You
don't set up a study committee. You have to move fast and that's what we did in the past. Even
though we had a little staff, we weren't handling one or two cases, our case load was maybe fifty,
sixty cases. I had a staff of a dozen people covering four states so I had to make judgments
with a limited travel budget. The travel budget was a big one, but a limited one. So you have to
make judgments. In a sense that's good, because unless you move fast nothing's going to
happen.
Question:
How many cases does a typical mediator/conciliator handle in a year?
Answer:
Successfully?
Question:
No, not necessarily.
Answer:
The majority of cases do not get to mediation. We were doing
conciliation. Which is more of a communications process, and it's more patchwork. You do
what you can, but it wasn't like a written or oral agreement. We weren't doing that
many mediation cases even at our peak. But mediation was part of our job.
Question:
Give me a ball park figure. Five? Fifty?
Answer:
At one point we were leading CRS, we were doing half the mediation cases in the country.
Ten people and I were doing maybe, thirty successful mediation cases a year. Mediation cases
meant those with written agreements. Each person was doing fifty, sixty cases, carrying a
caseload of maybe twenty-five, thirty cases, at one time.
Question:
Let's talk about conciliation. We really haven't talked much about that. What do you do
there?
Answer:
Basically, it means you're not going into formal table mediation.
It's a communications process.
Wallace Warfield
[Full Interview] [Topic Top]
The question is whether or not CRS was really doing
mediation. So now we get into the slipperiness of terminology. I would say that CRS was not
really doing mediation. If you associate mediation with the comparatively narrow construct of a
table-based format, with a formal agenda, there was some of that. In fact, CRS became heavily
involved in some formal mediations and was very successful at that. But the bulk of the work, I
would argue, was more conciliation than it was mediation. Therefore, I think the argument that
CRS was successful -- I would sort of have to reframe that to say that if CRS was successful,
they weren’t really doing that kind of formal mediation. The reason why I think that’s
important, is that it meant that CRS did not have to abandon positions of advocacy. So if I were
to go into a community on an issue of police use of excessive force, as an African American, the
moment the police chief meets me, how can I portray myself as being neutral? He knows that
I’m not neutral. Am I neutral about the issue of police use of excessive force, directed largely
against minorities? Of course not.
| Bob Ensley
[Full Interview] [Topic Top]
We would set the tone,
temperament, and the ground work, and bring the mediators in. They would then move toward a
mediation agreement or some sort of conciliation agreement. But most of the time we could, in
fact, resolve it through the conciliation. That did not require a signed agreement, as mediation
often does. This is primarily the way we function.
Bob Hughes
[Full Interview] [Topic Top]
If you had to characterize the role that you played in a case, would
you characterize it as a conciliator, mediator, or a combination of both?
Answer:
Well, it'd be according to the case. Sometimes it was as a mediator, and sometimes as a
conciliator. Some cases simply weren't appropriate for mediation. From 1984 on, I was doing
less and less mediation and more and more conciliation, because of an area that I began to
specialize in that was crucial.
Question:
What kind of cases aren't appropriate for mediation?
Answer:
Well, where you have one party that would be utterly unwilling to meet with any of them.
Question:
So then what do you do?
Answer:
You're involved in conciliation. It's not meetings as such.
Dick Salem
[Full Interview] [Topic Top]
Mediation really was an education process for people
at all levels, from the most sophisticated local leadership to grass roots community members who
were trying to boost up their organizations and get things. It isn’t always that way; very often
the groups that we would work with would be very sophisticated.
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