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.

Question:
What about power being a factor? Do you have to provide some way where they can maintain power? We sometimes talk about the difference between 'power with' and 'power over.' Is there any way to have power with instead of power over?

Question:
Are there some situations that you found to be much more resistant to resolution than others?

Question:
Tell me what you think about the debate between transformative mediation, as they describe it, and the problem solving approaches.

Answer:
What I was trained in and learned from CRS was very transformational, in terms of relationships. That was the highest goal and that's why if you get institutional change that's great. If you can transform relationships that's incredible. But there's a very directive process for implementing the mediation process, the conciliation process, or the technical assistance. There are steps in the process to go through. Now, when I'd gone through orientation with them on the transformational I still don't buy into the whole idea of hands off as far as process is concerned. It's like finding the common interest or the personal interest that can get people to move on. If they could do that for themselves, they wouldn't need you. They wouldn't even be there, they'd be working it out. So, if you don't have a process in mind or a plan I'm not sure you're doing anything but refereeing and you're not supposed to do much of that. Now I think it's effective in highly relational situations where it's a family, an employee/supervisor, where that relationship is there. The transformative model is really a nurturing kind of guiding, keeping them focused on aspects of the issue. So in that context the purely transformational model may be most effective. Anytime you move to more complexity I'm not sure it would be effective in the pure sense. I think I have said to more parties than I could ever name, "I'm in charge of the process. If you're uncomfortable with that I need to know." What I have to offer you is the process, and it works. If we'll honor the process something good can come out of it for you. It's my job to make sure we honor the process.

Question:
Do you give them opportunities to tinker with it?

Question:
Good. Going back to another theoretical mediation model, it’s been asserted that most of what mediators do here in the States is what’s called the North American model.

Answer:
Oh, God. Drives me crazy.....

Question:
Okay....

Answer:
What is the North American model? I mean, so what version of the North American model....?

Question:
Well, the model that's based on Fisher and Ury, Chris Moore – standard interest-based mediation.

Answer:
Oh, I see, that’s the classic North American model. Well, I have a couple of perspectives about this. First of all, there’s very little research about what model works in what kind of dispute. It’s mainly anecdotal, heuristic kinds of perspectives. Is it true that the so-called North American model does not work in some cultural settings? Yes, it is true. But, what I think people are ignoring in the midst of the popularization of this notion, is the issue of class as an intervening variable. What they assume, is that any group – except for the North American group – for whom the model works, is necessarily some kind of romanticized culture......it’s like, people running around in the forest someplace, anyone who has a traditional culture. It would be interesting to speculate as to how that got generated and what people think of traditional cultures and where that comes from, but maybe we won’t go there (laughter). But the fact of the matter is, class is a much more dominant intervening variable than traditional culture is. The work we were doing in Rwanda -- and just transpose Rwanda into even domestic settings and I’ll do that in a moment -- so we were doing a project in Rwanda with Viskias Asetas and I, and Larissa Fast, the doctoral student who was working with us. We had this week-long skills activity that we were doing in Kigali, and the question was: "Should we do some basic mediation training?” We said, "Oh, we can’t do mediation training, because we all know what’s said about doing this kind of training with traditional cultural groups. On the other hand, this could be important, because they’re going to need to know how to do this in some form....” We agonized over this for days, right up until the night before. We had an alternative agenda, if we decided not to do it. We said, "No, it’s a skill, we think it’s worthwhile learning, and let’s do it,” so we began the session by saying, "We’re going to do some mediation skills training.” We gave a description of mediation, and said, "this may not fit exactly with your culture, but tell us how you resolve disputes in your culture,” and got some information about that. We looked for parallels, there weren’t any, and so we said, "Here’s what the mediation process is like.” We did a presentation on the mediation process, and then we did some simulations and some role-plays. Well, they got it. The reason why they got it is because the Rwandan leaders were all middle-class people -- college-educated, middle-class people. Could we have done this back in the bushes? Absolutely not. So one has to look at class as a much more dominant variable than traditional culture. I have a good story about that here in the United States. It wasn’t one that CRS was involved in as far as I know, but back in the mid-‘70s at the height of the school desegregation policies -- when the federal courts were issuing school desegregation orders, in Atlanta, Georgia. Atlanta was being looked at and there was an order for the Atlanta schools to desegregate. Now, the history of relationships between blacks and whites in Atlanta was such that the Atlanta NAACP was incredibly sophisticated, probably the most sophisticated branch of the NAACP in the country. At that time, Atlanta had more black middle-class people -- possibly with the exception of Detroit -- than anywhere else in the country. The Atlanta NAACP decided that bussing should not be the defining issue in the negotiations. First of all, in most bussing situations, it was supposed to be two-way bussing, but it was really a one-way kind of bussing. So it meant that black schools were the ones being primarily closed, so that black kids were being bussed at all kinds of hours of the morning to white schools, only to be re-tracked once they got to those schools. What the NAACP recognized, was that in the black communities, not only was there fairly decent education going on -- they may have been under-resourced, but they were doing well with what they had -- but there some powerful icons that had been built up in those communities by those schools. Somebody’s father and grandfather had gone to those schools, had been valedictorians in those schools, had run track, and so the sense of identity that was taken for granted in white communities was under threat of being destroyed in these black communities. So the Atlanta NAACP decided that bussing wasn’t the issue -- the more important thing for them was superintendents, school principles, and resources. "And if you give us that, we’ll educate our own children, thank you very much.” The national NAACP got wind of this, and threatened to take away the charter of the Atlanta NAACP, until they began to think about it: do you really take away the charter of the Atlanta NAACP? I don’t think you really do that. It was an interesting juxtaposition of conflict resolution values and approaches that we used -- and the Atlanta NAACP had already gotten to a point where they were looking at this much more from an interest-based perspective. I mean there were values there, but by now they were quite prepared to deal with this on an interest-based kind of mediation. So I think we, in the field, need to look at that a lot more carefully.

Question:
This isn’t really relevant to this interview, but I’m curious: Did the judge let that happen?

Answer:
Yeah.

Question:
Interesting. So, let’s go back to the CRS arena now: There’s plenty of times where the white power structure is middle-class, and the minority community presumably isn’t. What do you do then, in terms of process?

Answer:
Well, it isn’t clear to me how that necessarily changes the process.

Question:
In terms of what model you use, you said that class really matters....

Answer:
Yeah, well I think that class matters from the standpoint of conceptualization of process. It may mean that you have to use some kind of a hybrid in a sense, or -- I talked about this a few moments ago, but this was a prison mediation I did many years ago in Monroe prison, which was, and still is, a medium-security prison right outside of Seattle. Conflict over minority inmates feeling that they weren’t getting their fair share of resources in comparison to white inmates who had done the same crime, and were serving the same kind of sentences. There were a couple of riots there. So, my recognition was that we were dealing with a very sophisticated warden -- white warden -- and his staff, who had been to the table in various kinds of fora and were used to the patterns of negotiation. And an inmate community, mainly inmates of color, who had not had that experience. So what I did was, I said to him, "We can’t go into mediation with this kind of imbalance. Just my few questions and meeting with the inmates’ side tells me that they know very little about negotiations, and I think if you’re really interested in this being successful, you’ll let me do at least a day of negotiations skills training with them first,” which is what I did. So one way that you can do this is to create a distinction in the process at the beginning, by being very transparent on what needs to be done, and with the white side say, "Look, if you’re concerned that I’m going to be involved in some sort of sedition-like sort of behavior, or that I’m going to be instructing them in terms of what to do, that’ll become clear enough in the actual process, and you can always end it if you don’t care for it.” So that’s one way of dealing with it, to sort of recognize the disparities and address them up-front, which is what I would prefer to do, rather than to simply go into it, then figure out once you’re into it how you’re going to redress the balance.

Question:
Okay. How much direction do you give to minority communities, or how much assistance would you give them in terms of identifying their issues, prioritizing their issues for them?

Answer:
In caucus, the risk is you get into more of an evaluative procedure with the minority side, comparatively less so with the white side. The risk is that the evaluation will become known in the joint sessions and then there you are, blown out of the water. Again, my experience – I don’t know what other CRS people have done, but my own experience then, and still is – is to be very transparent about this and say, in effect, to both sides, "Now I sense that there’s a need....” Particularly what happens is that there’s a frustration on the part of the establishment’s side in the process, and it allows you to say, "What I think is happening here is that the minority side doesn’t really have a good sense as to how to organize the issues. I think I need to spend some time with them to be able to do that. Would you let me do that?” So when you’re meeting with the minority side in caucuses, it’s much more than an evaluative procedure. I mean, think about this: "What are the consequences of taking this action now?” Now eventually, that gets evened-out, my sense is, by doing it jointly so as you get closer to the actual agreement. Then you’re sitting there with both sides and you’re doing much more of an evaluative procedure toward the end than you were in the beginning, because people trust you. I think that I have much more comfort -- by the way, it doesn’t matter if it’s mediation; I could be doing a problem-solving workshop -- as a facilitator starting out in a much more clearly-defined position of neutrality -- neutral in the sense of being neutral and non-evaluative, and then becoming increasingly so as trust is built up between the parties and as trust is built up with me. So by the time we get to the point of people getting ready to sign off on an agreement of some sort, you’re fully-prepared then to say, "Well first of all, let me tell you my own experience,” and I’ll go into some experience, and I’ll say, "Let me give you a perspective about this from another point of view.......you can do this, but here’s another possibility......here are some resources you can look at if you want to go beyond me, in a sense....”

Question:
But you wouldn’t do that up-front in caucus?

Answer:
I wouldn’t in the very beginning, because I think that the danger is, you’re taking over the negotiation for one side, and then when you come back into the joint session, that side is looking at you saying, "Well, your turn!” (Laughter)

Question:
Okay. Do you think that what you do as a civil rights mediator is different qualitatively than other types of mediation, or would you use the same processes and strategies for other types?

Answer:
Yes, and I feel the issue is not civil rights. It’s issues of social injustice, social justice concerns; it could be civil rights, it could be other issues. So, I’ve used similar techniques where I’ve done an intervention in an organization, and the women in the organization were concerned about their role. So it was the same kind of dominance/power/suppression of voices, very similar situations. The women in the organization were concerned that the only difference I found in some cases, was that if the women in the organization were of sufficiently high rank, the ambiguity about their positions -- "Should we be more vocal, or just play the game? We’ve gotten this far, we can just tough it out.....” You have to figure out, how do you help them in that sense? Anyway, that’s another story.

Question:
Do you run into that sort of thing in race relations too, though?

Question:
So when you say transformative, for you or for the parties?

Answer:
Well sometimes it was for both, but I’m speaking now primarily about myself. The ability to be in a community with a colleague -- we speak of trust, but we didn’t speak about trust between interveners themselves. There is no time in situations like that to doubt whether or not you trust the person you are intervening with, in those situations. It was just tremendous. But I’ve been blessed. I have been very, very fortunate, in a 40-year career, to have had those kinds of jobs. I mean, working with street gangs there yielded these kinds of transformative moments, as well as with the community corporation. So I think CRS more so because I was there the longest. I was in CRS for 20 years.

Question:
Is it something about the nature of that work that makes it more transformative than other kinds of mediation?

Answer:
I think so, because it’s not gilded – if you want to use the model that we were discussing earlier when we first began this conversation. It’s not your kind of relatively dry, interests-based issues. You’re dealing with really deeply-rooted values and human needs, and it’s incredibly humbling. Another thing that’s not a skill, but a virtue I think a civil rights mediator needs to have, is humility. The fact that people have allowed you into their lives. I’m always amazed by that. Even in the work that I do now, that isn’t it amazing that someone, some group of people, have let us come into their lives to leave our fingerprints on what they’re doing in their lives. As I’ve often-times said, it’s sort of like putting your finger into a swiftly-moving stream, because once you put your finger in that stream it will never flow quite the same way again. That’s the kind of feeling that gets you up in the morning, all these years, to do that kind of work. It’s terrific.

Question:
That’s a good way to close, but it leads me to one more mundane question, but one I’m curious about, which is, how do you weigh-in on the debate over transformative mediation versus problem-solving mediation?

Answer:
Oh, well you know the brouhaha that went around about that. You know, first of all let me say this for Baruch and for Bob, that what I thought they really did was to take a huge risk and speak to the kind of icons of power in the field, in ways that they needed to be spoken to. To say that there is more to this business than simply just getting an agreement. Now, the problems I have with the book: for example, without getting into labeling -- some people have, and I’ve done this in other forms, have described their approach as being elitist. Well, that might be too harsh a term. I don’t think of Baruch or Bob as being elitist at all. I know the work that Baruch does in Brooklyn, and he’s not an elitist. But I do fault them in a sense that they criticize what they call the "problem-solving approach”. I wish they would stop using that term, but – for want of a better phrase right now, they talk about their concerns with the problem-solving process and then they raise the Rodney King-Los Angeles riots of ‘91-‘92 as an example of where the problem-solving process didn’t work. They don’t tell us, though, how their approach of empowerment and recognition would work any better. I fault the book in that sense. In that same vein, my concern is that they lead one to believe -- and if you speak to them conversationally they don’t say this or necessarily support this -- but the book leads you to believe that empowerment and recognition are paramount in getting an agreement. Well, try telling that to underprivileged, disempowered groups of people. Minorities, and women that, you know, all you need to have happen from this is that your boss, or the powers-that-be say, "I feel your pain, and boy, I’m glad this process has empowered you to speak to this issue! In the meanwhile we aren’t going to change a damn thing." Big problem for me. Now, unfortunately, what happens is that people immediately look to the demographics of the writers and say, "Well, what to do you expect from two white men?” I think that’s a little unfair in that sense, because I don’t know them that way personally, but that’s how it sounds. Now, if you talk to them, they don’t really feel that way when you actually talk to them, but it comes out that way in the book. The only other problem I’ve had, is that I wish they had used other examples where the parties didn’t seem to me to be -- how should I say this -- clinical. I mean, there’s an ethical question of whether or not the woman who was a tenant in that landlord-tenant situation should have been in mediation. I thought she was clinical and the same goes for that guy in the housing thing that they were dealing with – the neighbor issue. I don’t know about mediating with people like that. That’s the interesting point: Should you mediate if you suspect that people may not have all their faculties? You can pull them off to side-bar preparation and negotiation skills training all you like, until the cows come home, but if they aren’t mentally prepared to go for this process, then you are inviting some difficulty. Ultimately, as I was saying in the beginning of this conversation, the moment you begin to move parties out of their relatively non-rational kind of "belt” – almost non-verbal, value-based human needs – you’re immediately moving into a more rational process. And I just worry that, in some cases, people might not have that ability. Should you be mediating with them? I don’t know. Or, maybe what we need to do is think about intervention teams, where you have a process person, who’s got the process skills – as we’re more familiar with mediation and conciliation, broadly constituted – but that person’s working with a psychiatrist. Something of that sort. One of the things that we’re thinking about here – and I think others are as well – is that the nature of the kinds of interventions that we’re doing now are so complex, that why not think about teams of intervention people who have different kinds of training? I mean, it’s all intervention, but we’re looking at people taking different parts of it. So, we’ve had the idea of using anthropologists and ethnographers in conflicts where you have traditional cultures involved, because they have the skills to understand culture, and how culture plays itself out on the ground. So we have Kevin Avruch, who teaches in our program, and Kevin does a piece with our practicum students about, "What do you see when you go in the field? What do you look for?” Because they’re trained observers. Things like that.

Question:
I heard you implying that you do a transformative kind of thing at the beginning – where you’re working with the values, and then you transition into an interest-based process. In the book, it says you can’t have both.

Question:
How is civil rights mediation different from other kinds of mediation?

Question:
There are a number of conflict theorists who suggest that identity conflicts are a) the hardest to resolve, or b) cannot be mediated at all. They say identity conflicts require a needs-based process, rather than interest-based negotiation or mediation.

Answer:
That's clearly accurate because they are difficult, un-mediateable, but you don’t mediate the conflict, you mediate the dispute or related problems. You mediate something that’s going on. You don’t mediate Christianity vs. Islamic Law for example, but the problem of how the parties can live and work peacefully in the same environment. You’re trying to change attitudes along the way, but you’re dealing with behaviors over a specific issue.

Question:
So you mediate the specific issue, not the underlying identity.

Answer:
You do what you can do, but be realistic. You’re there because of a problem and everybody has rights to things and people can accept that, and they understand that. You try to show people what they have in common. Minimize the differences. Get them to hear things they haven’t heard before, and to understand where others are coming from. Hopefully, you get some attitude adjustment along the way. Whether it’s partial or total transformation or none at all is another matter.

Question:
The line that got missed when we turned the tape over that I thought was important is that you don’t resolve the whole identity issue.

Question:
Another similar sort of question relates to the statement that is being made quite a bit in the field now, that white Americans have what’s being called the dominant North American model of mediation. Many people think it doesn't work in other cultures and this has been very much said in relation to Africa, Central and South America. Some people are extending that to minority cultures within the United States. Do you, or did you see any need to adopt different approaches for different cultural groups?

Question:
You mentioned at one point that the majority of cases don't go to mediation. What determines whether a case is appropriate for mediation or not?

Question:
I have a theoretical question for you. At the Conflict Consortium, we have been working on a theory of intractable conflicts for a long time. We have said that intractable conflicts generally cannot be mediated (almost by definition) and that identity conflicts, including racial conflicts, are particularly likely to be intractable. So as I was listening to your discussion about the orange, I began to wonder, how do you get people to reframe a conflict from being about race to being about something else?

Answer:
It's what I started talking about early on. You don't talk about race; instead, you ask, "What are the hiring policies?" or, "What are the discipline issues?" You ask, "What does the curriculum look like?" or, "Do you have access to the establishment, to the superintendent?" Because even though the community sees the superintendent as being racist and as being the reason why they can't get what they want, the real issues and I'm not going to say race hasn't influenced what has happened there but the next level or the level at which this needs to be resolved isn't race; it's policies and procedures, and access, and communities, and processes. It's about interaction and communication, both of which were sorely lacking in this case. The race factor just made it more difficult because both sides believed, "Those people are difficult to deal with because of what they have been taught." Race was the orange, but it wasn't the issue. The community could get a person of the same race in that position who didn't change the policies, and that would be more frustrating, because now one can't even blame it on racism anymore. But if they got somebody else who is white, but who changes the policy and is more responsive to the community, that will decrease the perception of racism. And that will diminish the taproot or fuse of inequality and disparity. So even though people see the issue as race, it really isn't race at all. Another example of that is the issue of sovereignty, though I haven't yet been able to get the parties to understand this, and so I haven't been successful in reframing in this area. Sovereignty is a big issue with Native Americans, particularly when it comes to law enforcement on reservations. There is less and less willingness by tribal leadership to allow a non-tribal law enforcement to have any kind of role on the reservation. This also applies in cases of hunting and fishing rights disputes. One of the biggest obstacles to developing some effective collaborative approaches to law enforcement on and near reservations, and to hunting/fishing rights on and near reservations is that both the American Indians and state officials approach it from a perspective of, "Who has the sovereignty? Who has the jurisdiction?" What I try to get across is, "Okay, if you have the jurisdiction, or if you have the sovereignty, what is it you want to do with it? What is it that you want to accomplish?" If I could get them to talk about what effective law enforcement would look like, regardless of who has the jurisdiction and the sovereignty, I really think they could work that out. I totally believe that. But it is such a sensitive issue, it is very difficult to get beyond that. The focus has been on the sovereignty, because it's a symbolic issue as well as a real issue. Symbolic issues are very difficult to surmount. There was one hunting/fishing case that I was called in to, where the state and the tribe had been in negotiations but reached a deadlock. That's when someone called me. They said, "Well, so- and-so says Silke Hansen claims she can do this. Let's call her." "Oh gee, thanks a lot!" I keep telling people, "Why don't you call when you start these negotiations, not when they fall apart?" But I went up anyway, and they showed me what they had done, and I said, "I don't even want to see that." I started putting stuff on the white board. "If you have regulations, what are your objectives? What is it you are trying to accomplish?" And they were like this [she linked her fingers together] they absolutely agreed. So once they agreed on that, it was just a matter of determining what kind of policies each side needed to bring those objectives about. Both sides gave a little, and at the end of a very long day, the people at the table reached an agreement. That's the good news. The bad news is that when it went back to the tribe the tribe didn't buy it, because they said it was encroaching too much on their sovereignty. Another case in the same state ended the same way. It involved a similar kind of negotiation. The parties reached an agreement at the end of the day, but in that case it was the state that blocked the agreement. The negotiators went back to their superiors, who threw out the agreement, again on issues of sovereignty. So there was no agreement. But to me, it proves a point. You have to cut through and disregard the identity issues well, you can't ignore these issues totally because they are there. But the mistake that we usually make in most discussions is that we make racism or sovereignty the issue, and that is not the issue. The issue is, "How can we get past that to provide effective law enforcement?" "How can we get past that to provide good stewardship of our natural resources?" But the history of feeling attacked and encroached-upon and the perception that "they are just trying to whittle away at what we have, piece-by-piece," prevents people from focusing on the real issues. On the other hand, there is the concern that the state "should not give those people special rights and recognition." These feelings are so strong that it is very difficult to come from a different perspective. But I am absolutely convinced if they could just throw out that "orange" and deal with the "flavoring" and the "beverage," there would be much more common ground.

Question:
When you succeed in getting them to do that, what is the long-term result in terms of identity and symbolic issues and race relations? If they can cut through those things to resolve this incident, does it have a long-term effect on other incidents?

Answer:
Well, I think it would if it worked at all, but as I said in the two examples that I gave you, it didn't work. The people at the table were able to reframe the problem, but their superiors were not willing to do that, and the agreements were thrown out for political reasons. It was seen as giving too much or losing too much in terms of sovereignty and jurisdiction and control. So neither agreement held up. I do believe that had it held up, it could have provided a good model, a good precedent for how we can get cooperative agreements on issues like this. In fact, there are other states where there is less mistrust between state and tribe, and where in fact we do have better cooperative relationships. If you could either just not mention "sovereignty" or acknowledge that each of them has sovereignty, and that the two separate governments of two sovereign states are reaching an agreement, I think it would be doable. But there is so much tension and mistrust in this particular setting that it is difficult to make that happen.

Question:
What about other settings though? Such as, for instance, the principal who was accused of being racist, where you were able to reframe it in terms of discipline policy and hiring and that type of thing? Would that have affected the long-term relationship on race relations in the schools?

Answer:
It would, because the potential triggering incidents are less common, so the "bomb" is less likely to go off. Now there is a precedent of communication. There is a mechanism and an expectation that people will address and deal with problems before they get to the point of explosion. So it is the redress side that's handled more effectively. Once there is a precedent for communication, it makes a big difference. Probably one of the most positive examples of that is the same tax day facilitation. There were anywhere from 75 to 100 people in that room and at least as many when I went back for a second meeting. But out of those meetings came a sort of "community board" which included Hispanic and Anglo participants, including law enforcement people. They formed this board and I trained them in three days I gave them three days of basic mediation training. I remember one of the members of the group said, "Gee, you know, Silke, I think this is the first time somebody has come and said, 'I'm from the Federal Government and I'm here to help you,' and then actually done it." I thought that was a huge compliment at the time. That board still exists today, and is still dealing with problems involving the police and community relations. But they also began to look at other sources of tension within the community. This community started out as very mistrustful. There were a lot of accusations about how Hispanics were being treated by the law enforcement system. But now the leader of that system is working with that Hispanic community to deal with education issues in the community purely because people are talking to each other now. And they pay me to do that! It's great!

Question:
What do you do when you get the parties to the table and they reach an impasse, and just can't go forward?

Answer:
I can think of only one case where we actually got to mediation and that happened. It was a court-requested or court-ordered mediation. And it was after days of work. I did what I usually do: I usually start with what I would call shuttle diplomacy I hedge my bets. I like to know what the parties are going to say when they come to the table before they come to the table. So I do a lot of work with the parties individually before I actually bring them to the table. In this case, they were in the same building, but in separate rooms. It became very, very clear that we were not going to get anywhere. So I ended up just telling the court, "Your honor, I'm sorry, I tried, but it's not going to happen here," without saying whose fault it was. You know, I had my own perception, and I thought, quite frankly, that one of the parties was probably foolish, because they could have gotten some gains and they ultimately lost. I think they could have negotiated some gains out of this. So in that case, I didn't have a clue of how to get past the impasse. But that's the only one I can think of where parties agreed to mediate, but where they didn't reach at least some agreement. There was another one that wasn't court-ordered, but which had been in court, and it included some hiring and affirmative action-type provisions. The parties reached agreement on most of the pieces, but not all of them. In this case, I think that part of the reason they couldn't agree on all of it was that one of the parties was given false expectations by their attorney. The way we left it in the agreement was that we stated the areas in which they agreed, and the rest went back to the court and the judge would issue a ruling. In each case, what the judge ruled was what the other party had offered in the first place. So, unfortunately for the other party the minority party in this case they really didn't get anything more than they might have gotten if they had continued to mediate and reach a settlement that way. One of the things that I always do at the beginning of a mediation session, is get the parties to agree on what to do if there is partial but not full agreement. If there are ten issues, for example, and they can only reach agreement on seven, does that mean they go ahead and sign an agreement on those seven, and leave the other three hanging? Or, if we don't reach agreement on everything, then do we throw it all out and say that there's no agreement, period? I think you want to get that understanding before they start. It's much better than getting half-way through the mediation, only to have one party suddenly say, "I'm sorry, if we don't get such-and-such, then all bets are off." So getting an assurance from both parties that partial agreements are acceptable is one of the ways of avoiding a major disaster. Sometimes, just pointing out how much agreement they've already reached then becomes an incentive for continuing the discussions. I can think of another case in which there was huge mistrust and even hostility between the parties. Some of the issues were complicated enough that it would require, or certainly benefit from, some outside expertise. So in that case, what we did was have each of the parties recommend a consultant who could provide expertise, and then we picked a third person within that field of expertise. So we had those three consultants or experts meet, and come up with some proposed approaches to dealing with the issues in contention. They did that successfully, and then they were able to sell those ideas to the parties, because they had credibility. So that enabled us to get them to agree to some approaches, and that would have been very difficult had we brought in only one consultant. If we'd had only one "expert," both parties would have said, "Is that consultant on their side, or is she on our side?" So having a panel of three worked very well in that particular instance. It was expensive for CRS, because CRS doesn't have those kinds of resources. But we did it in that particular case, and they did ultimately reach an agreement. So that's another approach to get past an impasse.

Question:
And those three consultants met by themselves?

Answer:
Initially. And then they served as resources to the mediation process, until the overall plan or outline was agreed to. And then when it came to finalizing you know, crossing the "t"s and dotting the "i"s that we did ourselves, just myself and the parties. Oh, I remember another case with an impasse. Here the parties had reached agreement on all the important stuff. We were working on finalizing the wording, and we got to the point of saying, "Each community and each ethnic group has a right to be represented and have its culture represented in the curriculum and other processes at the school." But that didn't work, because everyone wanted to have his or her own culture mentioned, but no one could decide what each group would be called. For illustration, let's say the conflict involved and Asian group. So do we say, "All Asians?" "No, no, it can't be Asians, it has to be Vietnamese specifically." But someone else said, "No, not Vietnamese, but Southeast Asian." And others just wanted "Asians." So just the wording almost blew the entire mediation. We finally got around that impasse with some wording that I came up with: "All children whether they call themselves Vietnamese or Asian or Southeast Asian or whatever, have the right to have their culture and history reflected." So that way, it wasn't the parties labeling the children, it was the parties acknowledging that the children would label themselves in whatever way they wanted to. We came to this idea at about 9:30 at night, and the attorneys were like, "What is this?!" But the parties were absolutely adamant. They would not agree on anything else. So it's amazing what can sometimes sort of throw that monkey-wrench in there.

Question:
That's a great story, and it seems to me that it illustrates one of the theoretical ideas we've been advocating that identity conflicts tend to be intractable. Because what they were arguing about, essentially, was identities....yet your wording found a way around that.

Answer:
And, again, the reason that we found a way around it was by facing it, not by just working around it. You don't minimize and you don't pretend that the identity issue doesn't exist, but you try to figure out where the identity is important. I think that we got down to realizing that what was important was that the children needed to not have their identity defined for them. And by framing it in terms of the children calling themselves whatever they wanted to, we got away from either party labeling them. So that identity issue was acknowledged. But it was acknowledged in a way that neither party imposed their ideas of "identity" on the other, and that's where the struggle was. That was a very interesting case. When we started on that one, neither party had very high expectations of reaching an agreement. So it was a very slow, gradual process, which we took piece by piece. And I think they really surprised themselves when there was any point on which they actually reached agreement. But any time they did, they thought, "Well if we can get this piece, maybe we can get this next piece too," and by golly, they did. I'm not going to claim that this is now a perfectly happy community where they all lived happily ever after, but the process of going through that mediation was valuable for everyone, even though there was still some mistrust between the parties afterwards. But in trying to implement the agreement, there was some effort at a common approach, rather than a win-lose competition. And that was huge in that situation. I think both parties would have liked to have been the winners, but it probably wouldn't have gotten them very much.

Question:
Have you seen acknowledgment of a group's identity as important in other cases as well, or the value of a group's identity?

Question:
I guess the final question that I have is whether or not you think CRS involvement might have undercut a minority group? Did CRS undercut the direction or the position that a minority group might have had? Do you think it was helpful, in general?

Answer:
Well, I know there is a debate about the role of mediation-- that it can be a process for selling people out.

Question:
That's what I'm asking.