I think that was a very insightful program, because I was
working with illiterate adults in prisons, and I never forgot the relationship between lack of
literacy and crime and violence. I think there's such a strong correlation, that's why now I do so
many education cases as a mediator, because there are still remnants of injustice in our
institutions that have to be dealt with. Until we can get real equitable education, I don't know
what we can really systemically do to change race relations.
Question:
You have a chance to work on those things at CRS?
Answer:
Yes, I do.
Question:
Maybe we ought to go right into a case. We asked you to think of a case that typifies your
work. It might be instructive in running it through from entry to exit.
Answer:
Well, every case has its own story, its own series of lessons. One of my favorites, without
violating confidentiality, I had a university that was willing to consider returning 550 of its
Native American remains and artifacts after a person from the Ohlone Indian tribe in Northern
California happened to be visiting the university and walked through one of the anthropology
department's storage areas and noticed all of these bones sitting on this rack. She said, "What are
these bones? Why are you holding them?" They said, "Well, this is the Anthropology
Department. We study and let the students work with them, and we use them to practice
anthropological applications." She said, "But these are my ancestors. It's very sacred to us that
they be in the ground." So this Ohlone Indian went and notified other members of her tribal
group, and they began to talk about their ancestral remains needing to be returned. They
discussed the issue and it was unanimous among her family the remains should be
returned.She contacted CRS, and said, "We're very upset about what's
taking place at this institution. Somehow, these remains need to be returned."
I was working with Larry Myers of the Native American Heritage
Commission for the state of California. He joined me, and we decided that we would work this
particular case jointly. The university indicated that it would not go to the
table unless all the Ohlone tribes in the area were in consensus as to how and when the remains
would be given to the Ohlone People. There were all these tribelets that make up the same tribe,
and they all had some legitimate ownership or ties to the ancestors of those remains.
Question:
Was this all one tribe, primarily?
Answer:
Primarily one tribe in an area.
Question:
You said her "family."
Answer:
Often times you have families that make up tribelets that make
up the tribe. And they're often are very dysfunctional and at odds with each other. That proved
to be the situation in this particular case. The university felt that if they negotiated with one
tribelet, they may be attacked by another tribelet for being excluded or disagreeing with what was
done to the remains. The only way they would come to the table was if all of the different
tribelets and families unified and had reached consensus on the treatment of the remains before
they came to the table. So that really meant that the Native American
Heritage Commission and CRS would spent months going into sweat lodges and homes over
weekends, meeting with all the different tribelets, to make sure that, first, they would participate
in pre-meetings to prepare for the negotiations, and second get them to come to some consensus.
Question:
You were working this alone for CRS?
Answer:
I was working this alone for CRS and the Native American Heritage Commission -- they do
mediation particularly in this arena, but asked me to work with them because of my relationship
with the Ohlone People. There were at least six different divisions among this particular tribe
that we had to bring together. Very strong feelings. Some of them had their own burial grounds
and wanted to have the remains given to them so they could have them put into a mission burial
ground. Others felt they'd like to have these things hidden away because they didn't want
anybody to disturb or desecrate the remains, and they all wanted them to naturally go back into
the Earth. That's the spiritual way that most Native Americans believe that remains need to be
returned naturally back into the Earth, so that their spirits can rest in peace.
So, we met with the tribes, and it
was really difficult just to get consensus among the tribes; there was a lot of distrust. We knew
that we had the basic common ground of reburial. I think that whenever I conduct mediation I'm
always asking myself, "Is there enough in common interest to balance it off the differences on the
issues?" Common ground was the sacredness of the remains, and the need for the ancestors to
return to Mother Earth. So we kind of leveraged that idea throughout the mediation process. "If
you guys don't come to consensus, then what's going to happen to the remains? They're going to
stay there. We need to figure out what you've got to do. Something's got to give here." We
constantly leveraged the common ground against the different tribal
interests.
Question:
The alert came to you originally from this woman, or one of the
Native American Commission?
Answer:
I knew the woman, I knew the issue, but I think she had also been contacted by the Native
American Heritage Commission.
Question:
How did you know the issue?
Answer:
I had worked with her on some other cases, and she had alerted me that she was in touch
with the institution, and that she was going to see what she could do to get those remains
returned. So I knew of the issue, but I had not initially opened a case. At the same time, the
institution had contacted the Native American Heritage Commission and requested its assistance.
And in our discussions, we had learned that the two parties had contacted different people.
Question:
By "our discussions," you mean your discussions with whom?
Answer:
My discussions with one of the tribal members, and then Larry's
discussions with the institution. Since we had worked closely together anyway, we shared
information and found that they were talking to different people about the same issue. That's
when I decided to do this jointly with the Native American Heritage Commission, mainly Larry
Myers, the executive director. So we met with the institution to confirm where they
were coming from and what their bottom line was. We subsequently met with the tribelets of the
tribe to begin to identify their representatives of spokespersons.
Question:
How did you identify the parties?
Answer:
We went to each of the families over a period of months.
Question:
You define a family as?
Answer:
All the stakeholders that we could find. The Native American Heritage Commission keeps
a list of most-likely descendents to any geographic area. Through a
list of people that Larry had provided we went down that list and worked with those families who
likely had relationships to the remains. Later, we met with leaders of those families, and
eventually brought the leaders of those families to one large gathering of the tribe.
Question:
Over what period of time?
Answer:
I would say that it took at least a two and one half months. We had at least 10 meetings.
You always have a lot of hits-and-misses - people don't show up for meetings, so you have to go
back... we were driving all the way out to these rural areas and meeting with people, only to find
that the right leaders weren't there. So we'd have to come back and meet again. It was
an exhausting pre-mediation process.
Question:
I'm curious about the assessment.
Answer:
When you say "assessment," I think we knew where we were going pretty early, because we
had the basic contacts between the leader of one of the tribelets and the institution, and the
willingness of the institution to mediate. So we knew where we were going; we almost
immediately turned the assessment into the pre-mediation, because we knew that we already had
consensus that they're going to be mediation.
Question:
You were confident you knew the player, the parties?
Answer:
We were confident that we knew how to get to the players. We
knew that we had a list of most-likely descendents, and that always leads to more descendents,
but we had enough of the contacts to track down the key leaders. And they would come because
of the common ground and the interest in the number of remains. We knew this case
would be spiritual to Native Americans and that there was a lot of interest in what would happen
with the remains.
Question:
You could set your goals pretty early in this case?
Answer:
Yes, we were pretty confident.
Question:
What were those goals?
Answer:
Those goals were to sit down with the institution and figure out under what conditions and
circumstances the institution and the Ohlone tribe could agree to return and rebury the Native
American remains. We
had a list of issues that we anticipated the Native Americans would ask, and a couple of things
that had already come up. One, they wanted all of the remains. They wanted them to be buried
in a certain location, and they wanted that location to be concealed. Two, they wanted to identify
any of the artifacts that were related to what they called funerary objects to be returned with those
remains, and to be tracked, and to go through and contact the professors to see whether anybody
had, unintentionally or intentionally, borrowed any of the artifacts. So those were some of the
types of demands or requests -- that would be brought to the table for discussions.
So, what I normally do is, we get a list of those issues that
the complainant has, and in this case we would consider the Ohlone People the complainant. We
shared that list with the institution, and said, "Is they're anything that is not negotiable on their
list of issues and do you have any additions to make?" There was an additional issue that the
institution made because some 200 remains were not available because they were on loan to
another institution. They had loaned them for study by another school, which they didn't
remember until later. At some point later we got consensus and agreement on a list which served
as the agenda when we came to the table. We structured this so that
we had five to six representatives for the Ohlone and three from the Institution. All of the
families had a representative at the table. But they wanted their elders there, because they have
to consult with their elders on spiritual matters. This is a typical situation in a lot of Native
American cases -- the elders make the calls, but they don't come to the table; they send the young
people to represent them. So we had to negotiate some of the logistics in terms of the Institution
understanding why the representatives would be going to their elders to have caucuses to allow
for clearance of some of the issues as we go through the mediation process. That was all
concurred in by the parties before we came to the table.
Question:
Was there anything specific that you did to build your credibility
with the parties?
Answer:
I always insist on meeting the parties face-to-face. When I make
my initial contacts, I try to minimize the amount of talking I do on the phone, and I try to explain
what CRS is, what our intentions are, and that I am a mediator and will attempt to resolve
whatever conflicts are out there. "Could I see you or meet
with you at any point?" I ask that right away, because I think they can't begin to build trust until
they see you, they get a sense of what you're about, and I've always found that to be surprisingly
easy for me, I don't know why. Sitting down with people, and sometimes being very factual and
explaining what we're trying to accomplish as a service to them and of course at no cost to them.
I think it is always a kind of, "Why not take the risk?" I think it is a marketing process, but it
really takes a face-to-face marketing opportunity, and it's a service that will hopefully accomplish
their objectives.
Question:
Does it always work?
Answer:
Not always, but most of the time it works. I always try to draw the biggest picture I can
when I'm talking to people about a complaint or when they are grieving an issue, because I want
the parties to have a lot of options, and I think it's always good to help them to look at what
options they have, and to see mediation as one of those options. They have control of the time
and their participation -- all of those factors that mediation typically allows a party to control.
When they see mediation juxtaposed to the other options, often times they choose to try
mediation. I'm going to change the subject.
Question:
Go ahead. We can come back to this case.
Answer:
Okay, when I do a typical excessive-use-of-force case, where
somebody's been killed, and there's some level of shock, I always talk to them about, "Let's look
at where we are. When the incident occurred, you went through shock. Then you go through
denial, certainly you wished it didn't happen and you want it to go away. But then you get to the
point of anger, disappointment. And then you begin to get to the point of blame and you start
blaming sometimes yourself and others, who's at fault? You can either stay there -- some people
stay there for a long time -- that blame period is what I consider the marching period, when
groups go marching and demonstrating and are venting anger. Later you reach a point of
acceptance. You accept that it took place: "I know it took place, but how do I deal with it?"
Then you can go to resolution and reconciliation. So, when you
explain to people what the process is and they can find themselves, and I usually say, "Look, you
may want to demonstrate. You may want to march, and we can do that as long as you want to
and we'll work with you on that. But until you get to some type of resolution, when you're going
to stop and really work through the issues, you're not going to be able to put this behind you."
This is how I try to give them a sequence and a picture of a process. I do this for other kinds of
cases as well as. The parties have the option, whether to pursue a civil suit or mediation, or to
continuing to march, but "here's where you are, here's the options that you have, and this is what I
am offering you. You can proceed with all your legal options, you'll need to get a lawyer, you'll
need to file a suit, you'll need to see what you can find pro bona, you can file a complaint, you
can go through EEO; every scenario of any kind of complaint has a number of options and I want
you to be in control, and I want you to understand what I can offer you as a federal mediator."
Question:
People have the patience to listen to this if they're angry or
enraged?
Answer:
By the time I get to the meetings with people, the anger is there, but they want to know
what their options are. They're interested in that. Their anger needs to get focused on something
constructive at some point, and I think they realize that. I think they appreciate it if you can give
them that big picture. That's the way I approach a lot of cases. So in the case with the
institution, we talked about all of the options. Because the institution had already consented to
go to mediation, we knew where we were going, so it wasn't hard to get them to sit down and
really work with us. When we actually went to the table, we had an agreement on the full
agenda, and as we went through the list of issues, it went fairly smoothly because I think we
knew where we were going and we knew the parties common ground and interest and we knew
that the institution was willing to concede the remains to the tribe. They had learned about the
spiritual need for Native Americans and recognize that they did all the testing and learning they
could with these remains. They had no real, viable use for the remains. The pictures they had
taken and the pre-measurements and all of the analysis they had was documented in a way that
they didn't have to hold these remains to teach students in the future. So they were comfortable.
But we reached an impasse on the issue of the remains that
were on loan to another institution for a period of time. The Native Americans, at that point,
said, "We want those remains to be buried with the other remains at this time. We've agreed to a
time, a date, a location, and we have a ceremony to do. What are we going to do with these
remains on loan? They need to be brought back." The institution was caught, because they had
made a commitment to another institution. We couldn't get the parties to agree on a delay of the
whole process, because the Native Americans were anxious to get the remains into the ground to
evolve its natural process. The institution was caught because it couldn't get the remains back
without violating its commitment. They had talked about talking to the other institution to see if
they could get the remains returned earlier, but that was impossible because the other institution
had not finished doing important testing. I think, in all honesty, the representative of the first
institution made a viable effort to try to get the remains and expressed that to the Native
Americans. So we were stuck in this impasse. We couldn't figure out how we could get the
Native Americans to allow the institution to have an extension. It looked like we had to go that
way because the institution that had borrowed them had not finished what they needed to do and
had begged the institution to allow them to do that. And in good faith, the first institution said,
"We cannot violate that commitment." We were there for hours. We
looked at all the options we could come up with. We caucused and we came back. We took
lunch and came back to the table, but there was no movement. We did everything we could to
see whether we could refresh and energize the parties to back and figure out some acceptable
option. It was about the third or fourth caucus when one of the
representatives came up to me and said, "I think I have the way." She was the spokesperson of
one of the tribes. I asked her what was it? "They have to tell us." "Tell you what?" I asked.
'They have to say, 'That's the way it is, you can't have them. That's the only way. You can't have
the remains until we are done in two months.' They have to tell us."
Question:
Who was at that session?
Answer:
It was a caucus. We had taken a break and she had come and asked to caucus with Larry
Myers and myself.
Question:
She wanted to talk to you away from the group."
Answer:
Yes.
Question:
Was she representing the group?
Answer:
She was a strong enough leader and we knew she had the confidence of most of the group.
There was no doubt about it that whatever she said was going to go. She had that kind of
influence. It was kind of interesting because we went to the institution and told them they had to
say, "This is a non-negotiable! You have to tell them that those remains are not going to be
available, absolutely, and that's the only way this is going to work. And the Dean of the
Department said, "What?" He didn't want to take a hard position and feel like the institution was
being dogmatic. They had been very open and cooperative and all of a sudden now they are
going to say, "No...this is absolute...you can't have them for two months, and until this takes
place, they're just not available." They were very reluctant to do that, but Institution
representatives finally realized what the message was. The real message behind the option was
that the Native Americans did not want to betray their ancestors. If they gave permission for the
University to hold the remains any longer then they would have violated the trust of their elders
and the spirits of their ancestors. But if they are told by the institution to wait two months, then it
wasn't on them. It was the ownership of the betrayal that was important to them, and that was the
only way we got through that impasse. It came through a caucus...and nobody really wanted to
do it, but it was the only way. So, there was an agreement that there would be an extension.
Those are the subtle things that made this case very memorable for me, because after
all that impasse, sometimes it's just the little subtle, intimate way you say things, is sometimes
more important that the whole issue. That one has always left a lesson for me. It was a special
case.
Question:
Who put the agenda together? Was that a one shot mediation?
Answer:
I think that was a two shot...two days, and they were long sessions, like 4 hours.
Question:
Two consecutive days?
Answer:
Yes, I believe so.
Question:
Who put the agenda together for the meeting?
Answer:
I put the agenda together and we did that through the earlier consensus process with the
complaints. We listed all of those issues and shared it with the university and they looked at
those issues and added issues. Even after we went to the table, other issues subsequently came
up. So it wasn't on our initial agenda as I recall. But the agenda was agreed upon prior to
entering mediation.
Question:
Did you work with either party before mediation to prepare
them for the table?
Answer:
Yes, Larry Myers and I met with the parties several times to go
over the issues, to insure consensus by the Ohlone People and to confirm the parties agreement to
cooperate and select spokespersons of their respective teams. I had
worked with the Ohlone on a number of other cases with other cities. So I was very familiar with
many of the parties. And in the consensus building, we outlined exactly
what worked, what the process was, and what we hoped to accomplish, and shared this with the
institution to meet with them, and assess their sincerity to try to meet some agreement on these
issues. I think the institution was very sophisticated and supportive of what we were trying to
accomplish in extensive meetings to prepare the Ohlone for mediation.
Question:
Was there any media coverage of this?
Answer:
There was no media coverage of this that I know of. But I actually saw a picture...there
was a gentleman named White Owl who came in to bless the mediation process. He came in and
chanted a blessing and took a picture. And I didn't think anything of it...but what we didn't know
was that he was writing a book.
Question:
And no one knew he was writing a book?
Answer:
I didn't know he was writing a book. I don't think he said anything about it. But one day a
friend of mine said, "Steve I saw your picture in this book." He had written a story about Native
Americans' spirits and beliefs and in it there is a picture of myself and the Dean of the
Anthropology Department, and Larry Myers and a caption saying, "this is a mediation case
dealing with remains." So it's not as though it was not made public, but we did not have a press
conference at that particular time.
Question:
You had an impasse at one point in
this mediation. Tell us about how you respond to impasses.
Answer:
Well, when they come up and we are not expecting it, we all
look at each other and everybody's face is saying, "This is not working. We're not making any
progress here. Why is this issue so difficult?" We keep attempting to see what other options we
can come up with. Typically when you reach an impasse, and there's
no give and take by either party, we like to call a caucus and see if we can get any more
information as to what are the particulars and what are the positions and concerns of either party
with regards to the issue we are stuck on. In the caucus, I try to clarify where people are on the
issues, and why. For the institution we knew that they had made a commitment and
they made every effort to alter that commitment, but they could not. It was just something they
didn't have control of. At least that was their sense of it. From the Ohlone's position, there was
no way that those remains should stay in the Institutions and unburied. "They are disrespecting
our people, and our people are yearning to be turned to the soil. They've had them long enough."
Question:
This was told to you in caucus?
Answer:
Yes.
Question:
Was it told to them at the table?
Answer:
I think it was shared somewhat. But those are the kinds of things
they were saying, "Will you relay that to them? They need to understand why you feel this way.
Will you relate it to them?" Actually trying to bridge what they would share with us in caucus,
we would try to say, "Okay, we understand your point, why didn't you say that at the table? Let's
bring that to the table and see if that will help us, so we're able to get more information and get
an agreement that more information should be shared as to why you feel the way you do."
Question:
They were reluctant originally to share at the table?
Answer:
They did not share all that information at the table.
Question:
Is that typical in the mediations you do, that the parties hold back?
Answer:
I think it depends. With the Native Americans, there is a subtle respect at the table that
they show differently in the caucuses. And sometimes you need to flush it out or get permission
to speak for them at the table to bring out some of those more intimate details, because I think
there is a pride of their behavior with respect to the other party. So, for those reasons, we had to
work a little differently. In other cases where you reach impasse -- Vermont McKinney (CRS
mediator) and I had a real interesting case. Do you want to finish this one? Cause you can have
me jumping all over the place.
Question:
Go ahead, we can come back.
Answer:
Okay, Vermont McKinney and I had an interesting case where
we were asked by a U.S. Attorney to go into a situation where three Native Americans were
killed by members of a town police department on the borders of a reservation. Some Native
Americans would go into the town and they would get drunk and maybe throw a bottle or
something and it would escalate to the point where they would end up being killed. The police
had killed three Native Americans within six months. So the tribal police said, "Look, don't
touch our people. If you feel they've done something wrong and you're going to arrest them, call
us and we'll take care of our own people." And the townspeople said, "No way. They're in our
jurisdiction, they're ours." Then the tribal police said, "You do it again, and we'll be there, and
then we've got a problem." So that's when the U.S. Attorney says, "Community Relations
Service, we think we could use a mediator." So we sent in, Ada Montare, a former CRS
Conciliation Specialist. She was doing her assessment, and working with the parties, and she
happened to be parked out in front of a store on a major highway. She was getting into her car,
and a car hit her. She was hospitalized with a broken pelvis. She was taken by helicopter to San
Bernadino, and eventually she was brought up to San Francisco where she recuperated from her
injury. It was decided by the Regional Director that we better send two people in there.
Vermont and I went in and met
with the Chief of Police for the town. We met with the tribal police, we met with the tribal
council and we met with city council. When we met with the Chief,
he had an M-16 rifle in back of his desk. He said, "Oh, you send two guys this time. Who's the
bodyguard of who?" And we're concerned about why is this guy making these kinds of
comments? It was kind of demeaning. We knew we might have problem here. We
did our assessment and tried to figure it out. We could never get the chief of police together with the tribal
chief. It would just be one accusation after another. It was very tense at that level. But we
decided we could bring the town council representatives and the tribal council representatives
together. Vermont was really taking the lead on this case. It was decided that we get the two
councils together to sit in on the mediation. In this case, we hit another impasse. We
met several times with the parties prior to convening mediation. There were just a lot of issues in
this particular case. We knew what the issues were, and we knew what the concerns of the
Native Americans were. We conveyed that we were given permission to relay to the town
council representatives. The town council reviewed the proposed issues and were willing to
discuss them, so we started setting up our mediation schedule.
Question:
The town council heard the concerns from you for the first
time?
Answer:
There had been enough writing and enough information. They knew generally what the
issues were, but they didn't know exactly what all the detailed points that the tribe was going to
ask of them. Once we got those from the tribal council, we were able to convey them to the town
council. And there was concurrence that they would meet and discuss them.
Question:
Did you filter or launder those issues to make them palatable to the town council?
Answer:
We write them pretty much as they are conveyed to us. There wasn't any objection to it by
the town council, but usually they are written in the language and from the perspective of the
complainant. That was the way the issues were conveyed, that was the way it was brought to
their attention and they decided to go with it. They didn't express any reluctance.
But I have had times when people say, "Well, why do you
write these things so negatively." Well, it is a complaint. The issues
are what we don't have, what services are needed and how we are denied this and whatever. I've
heard people say, "They're so negative. Can you make them more neutral." So I've kind of
looked at that. Because here we are, going to the table and it sounds like we're brokering, even in
our agenda, for the complainant, because of the way I've framed the complaints. So, I've
reviewed this matter after some questions by the non-complainant party as to can these issues be
construed as statements that make overtures of position and are weighted in a way that they
almost become advocacy positions. As a mediator, it's incumbent on us to try and take out some
of the positioning and present the issues in a neutral and balanced way. So I do alter some of the
issues at times now, but we didn't do that then because there didn't seem to be any
need to because the parties didn't raise any concerns. Some
of the issues were: we want to have the right to come into the town and handle arrest of our own
people. That the town police should not conduct any arrests of Native American people. They
were talking about issues like the Native Americans have a different tribal system, different jails.
There were some negotiations as to, if they do incarcerate any individuals, where do they go and
how do they do that. So there are a lot of details in that case with regards to arrests, procedures,
trials, courts, the whole adjudication process for Native Americans who were being prosecuted
by the town. So those were the kinds of issues that were outlined. But behind all those issues
was really a total distrust of the town law enforcement, that their whole attitude was, "We're in
control and if you don't do what we say, we're going to press you until you do it, and if we have
to kill you, we kill you." There was just that attitude that seemed to prevail. And the Native
Americans totally distrusted them. Although we went into negotiations on these processes, there
really was a bottom line of, how do we restore the trust, and how does the town council get
control of its own police department, and change that attitude.
Question:
The bottom line for whom?
Answer:
For the tribal council.
Question:
Is that what they were seeking?
Answer:
That's what they were seeking. We recognized that they were pushing for some way to
guarantee this change of attitude, because we had reached an impasse. It was like, we've settled
all these issues, yet you're not coming to closure on this. Why are you holding out?
Question:
They brought this to the table?
Answer:
They didn't bring it out as such.
Question:
So they brought it to you? Or you perceived it?
Answer:
Well, we knew something was holding up this mediation because we had all the negotiation
points: who's going to arrest, how do you contact the tribal police, who has jurisdiction, when, all
the fine tune points for what a process or protocol to address their tribal concerns were, so that
there was mutual agreement as to how Native American arrests would be handled by the town in
conjunction with tribal police. We even negotiated things like, when they had to make an arrest,
they would call the tribal police and the tribal police would work in conjunction with city police
to do the arrest. They reached a number of agreements along those line. And yet, when it came
down to. "Is there anything else, are you willing to sign this agreement?" there was this "No" by
the tribal council. We couldn't figure out what it was, what more do
we have to add to this? That's when we realized that there was more to it, they were really
troubled by this distrust and attitude of the police.
Question:
How did you get that realization? Did they say something to you? Was it your insight?
Answer:
I think it was more of our insight. They didn't say it. It was just not said. It was like, "We
were holding the whole mediation process hostage because there's something that you haven't
resolved." We didn't realize what it was. They didn't say it. They wouldn't sign and they
wouldn't say why. We couldn't move it. I don't think they wanted to say.
Question:
So what did you do?
Answer:
We went through this impasse period of trying to sort it out. And again, in a caucus, the town council guy came up to us and said, "You know what,
we're willing to release the chief."
Question:
Release the chief?
Answer:
Yes, to terminate the police chief from his contract. He said, "You can't say that, but I just
want to let you know that our position is that we would do this." Okay, So what! That's what I
said. Now I got information that I think could resolve this, but I'm not given permission to
release it. Now we need to assess how to handle this barrier, so we decide to get the tribe to ask
for it. Now we have to try to get the tribe to look at other options: what is the real concern's of
the tribe, or what do you think would make a difference, and get them to pose it in such a way
that the town will be in a position to give it up. But if we would have not have known what this
impasse was about from the caucus, we wouldn't have been able to move this case.
Question:
What did you do?
Answer:
We probed the tribal council members as to what their concern was and what they felt
needed to be done, and at some point it came out, "We think a leadership change of the town
police is necessary." The town council said, "Well, we'll consider that." They wanted a caucus,
and they went into a caucus for a while, and came back and said, "Ok, we'll curtail the chief's
contract when it comes up for renewal." That was it. Everything fell into place.
So in those impasses, caucusing has been the key for me in most of
those situations. But you try all the probing you can, and try to move it. We've taken a lot of
breaks, come back after meals, but I think the probing that a mediator does in terms of getting the
parties to think beyond the box is probably the best way to get through those impasses.
Question:
What ever happened in that case, do you know? Was there a
follow-up?
Answer:
We learned that this guy was a sergeant for a major police department that was well known
for its strong, take control tactics. And it was the wrong tactics to take in that environment and I
think once that person was removed it took the whole tension out of the community. They
brought in somebody who had more of a small town, cooperative, we know the folks, kind of
attitude. It changed the whole demeanor and the relationship of the town. So we have not had a
request to go back. We've actually contacted them, and we know that that case worked out pretty
well.
Question:
Where were you on your original case before we started talking about impasses? Is there
more about that case?
Answer:
No, I just wanted to make that point. How subtle some of these
impasses are and the way you say things is so crucial and important to pick up on. But I always
say, when I teach mediation, that if you're a good listener, you know where you're going, because
they always tell you where the answer is.
Question:
Tell me about that.
Answer:
Well, in most of the cases I've always had, particularly in the discovery period and in the
discussions, the parties talk a lot about what they want. They not only talk about what the issues
are, but they talk about what they expect to happen, and what they would like to happen. They'll
throw out things, real quickly, and you've got to log some of those ideas away for the right time
because they often lead to the answers for an agreement later on..
Question:
When you say "they."
Answer:
Both parties. I think listening is the key skill. In most of the cases I've had, they throw out
so many options for you that if you grasp them early in the discovery process, they'll help you
later on to get through some of the resolutions. That's the way I teach mediation.
Question:
Do you have any tips from your learnings on listening, in terms of things you do?
Answer:
I take a lot of notes. That's proven to be very valuable. I've
heard of situations where disputants have said, "We don't want that mediator to come back out
here." And I ask, "What happened?" "Well, the mediator didn't take notes." Meaning they didn't
care. So I always take a pencil with me. Because people want to know you're really listening,
and that you really care, and that you are interested in their issue, and that you empathize with
them. I think you do that by a lot of the nuances that you give -- writing things down, asking
questions, and paraphrasing them. Those are all the basic things you have to do, all the time in
mediation.
Question:
You're always doing that?
Answer:
Yeah. I try to. Those are the fundamentals, to me, of a good mediator.
Question:
Do you ever have access problems getting into a case, the
parties don't want you there?
Answer:
Yeah, I've got one I just blew. It wasn't necessarily me, but it was blown. I've gone out to
a situation where there was a series of altercations at school. Many of the African- American
parents were concerned that the school was not properly reprimanding both racial parties. The
school where students had been arrested did seem very biased. Even the incident that provoked
the violence had overtones of racial bias for one side over another. So, we went out and heard
the complainant side and met with all the parents of the children involved. Then we went and
met with the institution, and told them what we felt, that mediation would be a viable way to get
through this. The institution absolutely refused because they'd had learned of a pending million
dollar suit against them. I said, that doesn't pre-empt mediation. You may have this suit, but
there are some things that I think we can still negotiate. The institution said to me, straight out,
that they totally distrust the parties, and anything in mediation would not be kept confidential and
would be used in discovery for the lawsuit. There would be no way that they were going to
participate in mediation. What do you do with that?
Question:
What did you do with it?
Answer:
Well what I did was, I said, "If there is this level of distrust, I'll
see you either now or I will see you later. Because regardless of what you do, whether you go to
court and win or lose, the problem you have at your school site and the relationship you have
with the African-American community is not going to be resolved by the courts, so if you feel
that the parties cannot be trusted, we can very well wait until that lawsuit it over. But you know,
you're not going to solve the problem until you sit down and get some agreement, as to what and
how you properly carry out your policies and processes with all students. Until that's worked out,
you're going to have to sit down at the table at some point, sooner or later. It's your call. I can't
tell you that you have to sit down now."I thoroughly believe that they can wait out the legal
process, but the law does not put the community back together. The law does not give the parties
a process to really put to rest the anxiety and issues that divide them. So I figure, I will be there
sooner or later. Meanwhile, in this particular case, I'm
concerned about the potential violence that could continue to germinate. While the adults go to
court and try to fight it out in dollars, the students are still potentially very much at risk in
continuing the violence. So I move out of the mediation and move
into a conciliation mode, and I look at what I can offer to try and lay to rest some of the other
conflicts that are taking place within that school environment. I told the superintendent, I wanted
to go to the school and meet with the principal, and observe that school. I want to make sure that
the school is a safe environment for the African-American students and the other youth, because I
don't know what's going on. The superintendent was very political and reluctant, but
said, "You contact the principal and let him make that decision." I
contacted the principal, and I was amazed that the principal is wide open. "Come on down, I'm
trying to do this and that." I'll go over what we are trying to do. What he talked about was that
he tried to form a multicultural club to work with both groups of students, to kind of figure out
what the school could do to get the students to relate better. I said, "That sounds like a great idea,
but too often, when you have a voluntary club, you only get the goody-two-shoes. The hardcore
kids that are really the cause of the problem, you can't get them into those kinds of voluntary
situations. You have to figure ways out to pull the really critical leadership that are involved in
the conflict to the table." I said, "Let me share a couple of strategies that we've used and I'll send
you some material and see whether that's helpful. So that's always for me a very positive thing,
when I can go to my experience and pull out a couple of real visual, clear tools that I can send to
an institution, and say, "Look, we've tried this and this works at these locations." I sent it to him
and I think it changed the demeanor of our relationship and I said, "I'd like to come out and meet
with you".
Question:
Had you met with him at this point?
Answer:
No, this is all over the phone. Now he feels that I'm an asset. Not only have I been there,
but I have some tools to offer. So then he's more than willing to meet with me, and to let me
come to the school and review it.
Question:
You call that technical assistance?
Answer:
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.
Question:
<0900>So what happened in that school?
Answer:
Well I'm still involved. I went out to the school and observed the relationships. I've been
to so many schools that I can tell. I usually go during lunch and recess and I observe the students
in their natural kind of inter-activity and try to judge whether or not there are these racial
clusterings, and this real tense kind of eyeballing, threats and challenges that take place in those
real tense and potentially violent schools, versus high percentage of interloper students that kind
flow between different racial groups. I want to see at least a
30-percent flow, because it's these kids that can mix with all the different racial groups that
communicate information and diffuse the tension in a school environment. Usually if you go to
most high schools, you see clusters of Hispanic students here, African-American students here,
European-American students here, Asian students here, and you have pockets like this all over
the school grounds. Once in a while you'll see a couple of mixed groups. But you watch the
language and the body language and the relationships, and then you look for, interlopers, African
Americans, that flow to the Hispanic group and flow to the Asian group and flow to the
European-American group. You want to see that kind of cross-racial flow. But those are the
diffusers, and you want a certain percentage in a school environment, to make sure that
everybody knows what's going on, versus everybody doesn't know what's going on, and they're
really living in kind of a fear of the unknown, because it's all "tense city." They don't want to
know, they don't care. If we get into a fight it's going down, and it just happens, it blows up all
along racial lines. But if you have this flow, usually it means, "Oh, I know that guy. He's cool."
Question:
So that's the health of the school. That's part of your assessment.
Answer:
Yes. That's the health of the school. I'm looking for this flow. What I found in this school
was there was a very mixed flow. You have to look at schools and power structure. This school
had 6% African American, 40% European American, 30%, maybe 40% Latino, a small
smattering of Asians, and then some Native Americans. So, you can look at a school and look at
its make up, its power, and how it flows, and kind of get a picture. My sense was that the
African-American students that I observed were very mixed with other students. Their number is
not large enough to be a power base for challenging. I think there was this sense of getting
involved, and mixing with other students, and I saw a lot of that across Latino and
European-American lines. I just felt that racial tension wasn't
there. But what we decided to do was, a couple of the African-American leaders requested that
there be a survey, that they ask questions like, "Do you feel safe on the school grounds?"
Question:
Were these student leaders, parents, organizational?
Answer:
There were student leaders.
Question:
Did you meet with them?
Answer:
I'd met with some of them individually. So what they
decided was, they wanted, it was kind of interesting because the principal said he wanted to value
the multicultural group, which was headed by an African-American student, and their choices
and their decision. The decision that they made was, they wanted to hand out this flier during
lunch and then they wanted to get the flier back and then evaluate where students are and what
the thinking was, about the climate of their school. They did that and of course during lunch,
they didn't get any back. The principal tried to convince the organization that that might happen,
but they felt they wanted it to be free and natural and of choice, not something that was required.
But I recommended that we go out and do that survey again but in specific classes because that
survey would be important. We would get a real ground-level analysis of the tension level within
that school. The survey would be very helpful, so why not do it? But he said he didn't want to
violate the trust of the organization. And I said, "Let's change it around and say we tried it your
way, but it's a great survey and we really need to get the reading, so could I put it in the English
classrooms, and get a reading?" And it appealed to them. They were able to do it. So what
we're doing now is we're doing this survey, and the data of the survey will be used to make a
determination as to what our next steps will be. If we see any level of tension, or anxieties of any
students, then we can properly figure out what resolution would best take place. The other thing
that I thought it was good that he asked was, "Could we teach peer mediation to the students?"
So, we said, "Okay." That's a given. We can do that. We'll probably do that at a minimum at the
school, if not more, depending on what's in the analysis.
Question:
Do you provide that training?
Answer:
Yes. There's a school district right over here in Inglewood. This school had riots at one
particular high school for seven straight years. And the last one became so overt that police had
to come in and kids ran into the streets and went to the downtown area and broke windows and
vandalized stores. The city came down and the superintendent was appalled, and the media
attention was just overwhelming. So the superintendent asked CRS to come in. What we did
with this school, was to partner with a local mediation service, Centinela Valley Juvenile
Diversion Project, to provide mediation training to every school in that school district. We wrote
our own curriculum and we trained. It's a real tight curriculum, that we train students for four
hours a day for three days.
Question:
Go back to that school situation where they had been having
riots for seven years. Was that an active case for you for a while?
Answer:
It still is. I've been in that particular school district for several years. The school disturbance took place in 1998 and the Human Relations Commission and I
got together and decided that we wanted to see what the senior of 2002 thought about the riot of
1998 when they were freshmen. One of the strategies we use after civil disturbances on
campuses is to do an assessment of the juniors and the seniors, and we do that for particular
reasons. For one, we want to know what they think was the cause. What did they do while the
disturbance was taking place? What should they have done? How could they help? So we do a
combination of an assessment and plant seeds to make them partners in restoring calm to the
school. That's why we do it with juniors and seniors because we want the older students to be
partners with us, to try and put some pressure on some of the younger students to see whether we
can defuse tensions. We do that in classrooms. We bring in a team of people so we hit all the
juniors and all the seniors to try to see if we can line them up and be partners in trying to quell a
school crisis. That's what we did in '98, meaning we didn't really talk to the freshman and
sophomores. So we said, we'd better go back and talk to them as seniors and see what their
points of view were, because we were so busy trying to squash any element of violence, we really
didn't take time to meet with the freshmen. Usually the seniors will blame the freshman anyway,
and what we learned from the review was that the seniors were actually challenging the freshman
to take to first step, to cause it. And all those kinds of things we learned subsequently. So that's
another approach we've used. In Inglewood, we promised the superintendent that we would go
back there for the next 5 years to make sure there weren't any more civil disturbances. So we've
been on that campus for the last 4 years, and it's gone smoothly.
Question:
Do you have the resources to do that?
Answer:
No and yes, as an agency, no, I don't think CRS with four conciliators are enough to
adequately serve four states --- Arizona, California, Hawaii, and Nevada. Spending too much
time in any one school is difficult. Each conciliator has to weigh his or her caseload and
determine where one's time has the most impact and need. Yes, in the sense that , if you
collaborate with other local agencies and build their capacity, CRS , at times, has been able to
often cover multiple cases.
Question:
Speaking of the press, do you work with the media? How do
you address the media? How do they address you?
Answer:
I'm not real strong with the media to be candid with you. I work
with the media because I know it's an important part of controlling rumors for school riots and
things like that. I was asked to be the spokesperson with the district in that situation,
and I was brought into every media event. The key question that was always brought up is, "Was
it Racial?" And I fixated, and we encourage the districts to fixate on a statement that you can
support and sustain and say to the media, so that you can spin it in a way that is more positive.
That question always came up, and I would say, "No, it was not racial." Just because you see
African Americans, Latinos, Asians or whatever, two groups with the appearance of going at it, it
usually starts with something very simple. The real motivation for the
conflict was believed to be the lack of recognition of ethnic celebrations. Once two students get
involved in a dispute other students join in because they feel a sense of allegiance to their ethnic
group. That's really what gives that flavor of a racial disturbance. But in fact, what was the real
cause is very rarely totally race. A lot of times it's gang instigated, because a lot of recruitment
goes on through playing off on race. In this instance, you could observe the way they threw the
bottles at each other. Did you ever play the game where you toss balloons, and you see who can
go the farthest before it breaks? That's the way they were throwing these bottles at each other.
The bottles weren't being thrown at a straight level, they were tossing them very high so that the
other side could really catch it and throw it back. So it was disturbing in the sense that you had
bottles being thrown at each other, but it wasn't malicious in a sense that they were really out to
hurt each other, and they happen to be African American and Latino. And then when I saw the
kids disperse when the police came in, nobody was hitting anybody. Even if two students of
different racial groups were caught facing each other alone, they didn't bother each other, they
just kept going. So, when the media asks, "Was it racial?" I say "No, and this is
why," and I talk to them about the bottles, and I talk to them about what I saw, and how the
students didn't physically fight, and then they don't ask me the race question anymore because I
won't give them the headline they want.
Question:
Tell us how you respond effectively to racial tension throughout the region you're
responsible for in 4 or 5 states.
Answer:
In Region 9 we cover Nevada, Arizona, Hawaii and California.
California being the largest state, and Los Angeles County with 10 million being really the most
concentrated area, which is why we're located right here in Los Angeles. The headquarters has said we need to empower and build capacity of local communities,
and that's one of the only ways we're going to be able to properly provide service because you
can't be everywhere. If you build the local capacity of a community to have its own ability to
resolve conflicts, then we will basically go to the key crisis where they are big and wide enough
that our services are needed.
Question:
How do you do that?
Answer:
Well, there are a couple things that I've done. I looked at what infrastructure there is
within the states. In California, there is an organization called the
School Law Enforcement Partnership Cadre. It consists of 50 law enforcement related positions
or officers and 50 educators and school administrators, who work collectively. They are spread
out geographically throughout California to work on addressing school violence, and violence
prevention. They are excellent partners for me. When the shooting happened at Santana High
School in San Diego County -- I think there were 13 shot and two killed -- my inclination was to
first go and meet with people who work in the School Law Enforcement Cadre. I have an
excellent counterpart there with the San Diego county office of education. He works in the area
of violence prevention and intervention. So I moved to his operation and very quickly got a
briefing on what's going on, where's it located, how do I get there, what's the circumstance,
what's his position, what's their role at this point? Then I move on to the scene and relay back to
his organization what we need, and begin to organize our whole crisis response to that situation.
Having these partners throughout the State is really helpful. And I've trained the Cadre in
different things that we do, to give them the skills to help empower school districts address some
of their own racial conflicts. I've also joined the board of the California Association of Human
Relations Organizations, which is the state network for all the human relations commissions in
the state of California. Again this is a critical resource in terms of knowing where the human
relations commissions are. They give two training seminars, one in Northern California, one in
Southern California, which I try to participate in or network, so that whenever a situation occurs,
we have partners to work with and we can also train these organizations. I've trained the
Riverside Human Relations Commission in mediation. I've trained them in dealing with Study
Circles dialogues as diffusion tactics and techniques. We took our SPIRIT program and trained
the human relations commission to work with, Students Problem Identifying and Resolving
Issues Together (SPIRIT). Programs like SPIRIT can be provided within the schools; it enhances
their capability, and it also means that we're touching more people. That's the way I try
to respond. There's a question that you ask: What is the long term benefit that we try to leave a
community when we go into a situation? One of the objectives of CRS is to leave a mechanism
to address the conflict and to try to give them the capability to resolve the conflict on their own.
So that's a big part, I think, of what we attempt to do. By honing in the skills of the local
community, we in a sense, give them a long-term mechanism to resolve
conflict.
Question:
Do you have an example of setting up a mechanism that's still
functioning when you're gone?
Answer:
Well I think Inglewood is a good example because what CRS did there was to look at this
school district which is predominantly African American and Latino. The superintendent was
very concerned that as demographic changes were taking place in other cities like Compton and
Lynnwood and so forth, there were these patterns of bickering that's taking place between the two
large minority groups, and Inglewood was going to face those same kinds of confrontations if it
didn't do something early in the process. He asked me to recommend something. I
recommended that they get into Study Circles dialogues. That they bring people together to talk
about race before anything happens. He instructed all his parent liaisons to conduct study circles
dialogues, ten of them in each of their schools. That was the goal for the year. So the schools
brought in parents in groups of 10 or 20 to participate in these racial dialogues, and they had to
do 10 in the year. The District ended up having something like 300 to 500 people at the
culmination event with experience in problem solving and completing school projects at each
school.
Question:
All adults?
Answer:
All adults, multi-racial. Filipino, Pacific Islander, Latino, African American, and some
European American. It was just a variety of people coming together who had participated in
these dialogues. What he did was he used the process and said, "I have a big challenge for all of
us." Everybody wanted to know what it was. He said, "I'm going to ask you, and I know you're
all problem solvers and you've all done the different things in your own school communities, but
I'm wondering if you would support a bond issue to improve our school
buildings?" That Study Circles group helped to pass the bond issue by
88%. I think it's the seventh highest rated school bond issue passed in the state. That was
because CRS and others got people talking and understanding and looking at school issues, but
caring for students, not about the bickering between them. They collectively worked on the
broader issues of the community, and the best for their children. So that's an example of doing
something to really give the institution a mechanism. And they continued to do those Study
Circles each year. CRS helped to develop a collaborative that gave that school district a peer
mediation capability, developed a curriculum and gave the District a community organization to
work with to sustain ongoing training. To try to institutionalize all of this, the collaborative was
awarded a grant to have the school assign two liaisons to what it calls peace project.
We were able to do this because every school district in California was given money after
Columbine. The governor released something like $100 million dollars to all the schools in
California and it was based on the number of students you had from 8th to 12th grade. You had a
formula. It was something like $44 dollars per student at that grade level. Englewood came into
something like $240,000 dollars. The superintendent knew this was going to happen.
He said, "Steve, I want you to develop a comprehensive conflict
resolution program for me; I think money is coming down." This is right after Columbine. And I
said, "Why do you think that?" He said, "Steve, white folks are getting hurt now." I didn't ever
think about that, but sure enough the state came down with this money, we had $240,000 dollars
and so I gave him a proposal of a program where we did peer mediation, peace builders, anger
management, we instituted problem solving in every classroom, and we did Spirit at the high
schools and we did community dialogues and we made that as a package program for this whole
school district ).
Question:
Do you have expertise in each of these areas or did you bring in
other resources?
Answer:
I did the anger management and problem solving. The Centinala Valley dispute resolution
center and CRS joined up and developed the curriculum package and they took over the peer
mediation program. They are in the community and they should. The Collaborative brought in
an outside consultant to do the peace builders. It also brought in an evaluator to look us over and
give us a written evaluation because we didn't want to be tied into the money without outcomes.
It brought in a mental health service from the county that was interested in putting counselors
into the schools. Prior to that if you had psychological problems or needs you would go to their
offices. Those are the systematic kinds of things we tried to do with that particular school
district. That is one example how local resources were brought in to allow CRS to go on to other
case work. I haven't been able to be as involved in other school districts, but it's really
looking at a community and assessing its capabilities and letting the school district take it over.
Question:
What percentage of your work time do you put into
school districts and school cases?
Answer:
I'm probably doing close to 50% of my casework in schools for a couple of reasons. One is
because of the network that is out there referring things to me. Two, I was a teacher. I worked
for the Department of Education and I believe that if CRS is going to bring systemic change to
race relations in our society you have to take advantage of a captive audience and you have to
work with young people at an early stage, early enough to change attitudes, values, and relations.
I just feel that if CRS is really going to make a change we have to get into the school systems.
And then in this area, if I were to do an analysis of where race relations turns to violence, it's
going to be in the high schools. The elementary school kids don't care. Most of the time they
just want to play. They want to do what they want to do and so forth. Junior high school they're
beginning to realize their ethnicity and they are starting to act it out, but they are more
want-to-bes than doers. By the time you get into high school it's not about play. It's about you
either do it or you don't do it. That is where the action has been. When you get out of high
school and you're an adult you are either a thug or you are working, you're surviving and doing
those things to improve your lives. The racial behaviors are not as provocative and as violent
and they work in different ways. They know the other systems and resources for fighting
discrimination. So when CRS attempt to assess where it needs to deter racial issues, the high
schools are probably a strong candidate. During the civil unrest of
1992 we actually went into the schools and did strategic debriefings of high school students to
talk about what options they had in terms of their behaviors, after, say, the O.J. Simpson trials.
We had just faced the 1992 civil unrest and we had to have students aware of other options, more
constructive ways of getting their message across other than going into the streets and causing
conflict. We went into a lot of schools and did that kind of debriefing. We also did an
assessment as we went along and we wrote up an assessment of what the attitudes were in the
different schools and what was the likelihood of students participating in violence, what were the
gangs doing and how destructive they were. We gave a briefing to the LAPD (Los Angeles
Police Department) about our findings and since then the LAPD does a lot of work with the high
school students in terms of assessing community tensions.
Question:
Let me move to another question. Some people say that many
social protests are a reflection of the inequitable allocation of resources in society, They suggest
that when you intervene and try to move the protest activity towards settlement, you are
addressing these underlying issues by throwing a bone to ease the pain a bit while the basic
societal problems continue. Are you, in effect, undercutting the purpose of the protests when you
bring parties to the table?
Answer:
I think there is a need for protests. It is important to get the attention and support of the
public. I think protests serve that particular agenda. If you can get the attention and the
sympathy of the general public, then it forces the institutions or whomever you are protesting
against to recognize that it is not in their interest to withhold resources, or whatever the protest is
about. Once that is leveraged and there is a willingness of the parties to sit down and discuss
those particular issues, then I think there is a time to go to the table. Now, there is a risk there
and I understand it. If the protest doesn't communicate and gain enough support then you don't
have the leverage to demand and maybe get all of the resources you think you need. Sometimes
you can cut a protest too short. In the same token sometimes you can belabor an issue by
protesting and lose the support of the public. I think there is a fine line there that the organizers
of a protest have to calculate. What is our objective? If we are only trying to get the support and
leverage for the parties to meet, then let's get to that point and figure out what they want to
accomplish.
Question:
Do you as an intervenor help parties reach those conclusions or
guide them as to how far to push and when to come to the table?
Answer:
In my work with CRS and the way that I look at is when the institutions are willing to come
to the table in good faith, then I think the protest time is not necessary. Now I have to judge the
good faith and whether the institution is sincere. I have to judge whether the institution is really
coming with real willingness to make a difference or if they just want the protest to end. I think
there is a fine judgment there, but I tend to move to the table and let the table be the process to
break down those barriers. I don't know but I don't feel I'm guilty of misjudging the moment.
During the civil unrest the Korean-American community
demanded a meeting with Mayor Bradley. He was reluctant to meet with the Korean community.
The Koreans decided they were going to stage a series of protests. They announced their
intentions to march around city hall for 30 days, and everything was fine until they decided that
they were going to bring their drums and cymbals and began to march with this banging noise
everyday. The workers in city hall became infuriated and they started throwing stuff at the
demonstrators. Then the Korean leadership decided they weren't going to get any response from
the mayor. Even though CRS was constantly trying to get the mayor to sit down with the Korean
community and to hear them out. That's all they were asking, to hear them out. It wasn't until
the Korean leadership decided they were going into City Hall to have a sit in that we were able to
leverage a meeting. I had to know all the agendas and issues and put them on the table in terms
of who do we select to come to the table because we didn't get permission until the protest
reached that climax. So, in that situation the protests were necessary. There was reluctance
about any concession for even sitting down and meeting and they kept building it up until it
happened. It was just amazing because once we got to the table they charged the mayor with
being at fault and guilty of adding to the riot by his public statements, and that he was a big part
of why they thought he should remedy their financial losses. The meeting did help to clear up
several misunderstandings, redirected their allegation against the Mayor to a civil suit against the
City of Los Angeles, and a willingness to seek FEMA assistance having exhausted the City
options.
Question:
How did you get into that case?
Answer:
Well, as soon as civil unrest took place CRS was flying down. We were all based in San
Francisco at the time.
Question:
So you were working out of San Francisco and this happened in Los Angeles, how did you
hear about it?
Answer:
We knew there were tensions here because we had been
involved in a lot of pre-riot conflicts between the Korean and African Americans and issues of
police excessive use of force that was taking place. We were down in LA all the time just
putting out swap meet and African-American community conflicts. Stores and demonstrations.
The precursor to all the civil unrest was at least a year of spotted conflicts between Koreans and
African Americans throughout. We knew there was this backdrop of police and community
tensions all along because there had been shootings of the Muslims and other altercations that we
had to respond to, all in the prior years. We've had gang leaders come to us and say, "we're going
to declare war on the Los Angeles Police, this is it. We're tired of this because we feel like we
are being hunted." So there is just a great deal of tension prior to the civil unrest.
So after the Rodney King unrest took place and we knew
that the Koreans were a big part of the civil unrest, they began to organize. You know they had
their vigilante response teams, groups of young people moving off with firearms to protect the
Korean stores in the African-American neighborhoods. My task with CRS was to try to de-arm
the Korean community. I started working with the Korean
leadership and I knew some of the Korean leadership from other case work so I began to move in
and actually we met the key leader of the young men's Korean organization that was really the
organizer of the response for the Korean community to all those stores. We were able
to meet with them and convince them, "You've got to turn it back over to the police now. You're
going to become a problem and you're going to become a victim of the police if you continue.
You've got to de-arm and you've got to get out of it. They're in control now, so give it back to the
police and move out of this." So we were able to do that. In that process we learned that there are these Korean victims' associations formed where
they are all vying for leadership. There was a great deal of turmoil in between the different
groups of Korean leadership trying to consolidate their power and status. The reason was
because money was coming from Korea to try to offset some of their problems. They wanted to
be power brokers. There is a great deal of that within the Korean community, of what is your
status in the community, and if you can be the controller of millions of dollars coming in relief,
you gain a great deal of status and cooperation and benefit. So all of a sudden we had these
organizations vying for this leadership of the Korean Relief Fund. There was a lot of politics
taking place within the Korean community.
Question:
You had learned the politics of the community, the culture of the
community over a period of time?
Answer:
I can't say I've ever learned it because it is a lot more complex than I could have ever
imagined, but I was privy to a lot of meetings and explanations as to what was going on. They
used me a lot too, to be candid with you, because once the Justice Department comes in and they
would say something in Korean and everybody would go, "Oh!" I knew I was being touted as a
representative of the government coming in here. I could never get clear stories from everybody.
But they gave us a lot of information; there was a lot of trust and cooperation formed eventually.
The older generation was looking at the Korean money. The younger generation was looking at
how the United States was going to try to restore their community. Some of the young people
felt that -- in Korea I guess when there is a disaster, the government will compensate you and
make you whole, you just lay out what your damages are and the government will compensate
you. They felt that the city had that role for them. They didn't even know what the federal role
was, they were so focused on the city that they refused to be open to other resourcesWe knew the
leaders and he was a very cagey guy, but at the same time I think he used us, but he gave us
enough information to let us know what was going on. He knew that we would at least insure
their safety, because we were playing that liaison between law enforcement, between city hall,
the protection service agencies of the city government. So they would give us just enough
information so that they felt they were being protected, at the same time they were getting their
voice heard. That's when they told me, "Here's our next game plan." And I go, "What are you
going to do now?" It was, 'Well, we're going to march around city hall." I was at one
of these victim association meetings, and he says, "Steve come over here, I want to tell you what
we're going to do next." And I go, "Oh no, what?" And they say, "We're going to march," and
sure enough they could turn out 300 to 500 people, at any event they wanted to.
Question:
So that was your alert?
Answer:
That was my alert. I was the team leader for the Korean liaison. I had a team of three other
people who were stationed temporarily in Los Angeles for the Rodney King incident.
Question:
What did you do?
Answer:
Well we knew a demonstration was going to take place. Since we know the leadership of
the Korean community and felt we had a fairly good handle on them, we decided to meet with
city hall.
Question:
That's what you did in this case?
Answer:
Yes, we met, with city hall and the police to let them know what
the Korean demonstrators intentions are, what they're going to do, that we're going to be on site,
that we have the leadership and we want to know who's going to be your leadership and how we
can continue to communicate at all times, because we just don't know where this is going to go.
After we met with the city hall police and let them know this demonstration was going to take
place, we had to let the LAPD know because there are multiple jurisdictions. The other law
enforcement agency that we didn't contact or develop a working relationship with was the
parking enforcement police. We later had a problem with them. So we learned that we had to
look at all the law enforcement agencies that were going to be involved.
So once we touch base and let
everybody know what's going on, we position ourselves as the liaison from the leadership to all
these other entities. We're constantly talking to the leadership as to, "where are you going to be,
how are you going to set it up, what's the organizational plan, how many people," as much as we
can get because having all the parties know is diffusing. It's the unknown that hurts you in these
situations. As long as we say, "We're going to share this with the police, they need to know
because if they don't know, they're going to over react, they're going to put more police out there,
they're going to be upset because they put more police than necessary, or other scenarios. "We
try to give them all a picture of what's to be expected and what our role as liaisons and mediators
will be during the demonstrations. That's the position that we normally always take.
And usually, in all the demonstrations that I control, I always try to
assign somebody to the leaders of the organization, almost like a shadow, because you know if
anything comes up, he's going to make the decisions. All the information is going to flow
through the leader, so having a conduit; you can keep the pulse of that demonstration. We
always try to have eye contact with them, if not a shadow, depending on what they will allow us
to do. We also, if we can, try to position somebody in a command center, or whatever the
counter-operation is, or at least have him know who that liaison is. In this situation
we only had four people, so we really didn't have enough to station people away. We all needed
to be marching with the 500 people because you have other elements around City Hall. You
have, of course, workers, but you also have some clients and homeless out there.. So there's all
these potential levels for altercation and conflict.
Question:
As you were preparing, were you working with the Mayor's
people to encourage them to meet?
Answer:
We had already passed on the request and explained to them what they wanted to do, but
we were getting no response. The mayor had a Korean worker on his
staff, and she was our liaison for a lot of our pre-negotiations with the mayor. She was a key
person who really helped us into the Korean community from the very beginning.
Question:
But the mayor wouldn't move on it?
Answer:
He just didn't feel that he wanted to face that animosity and the blame and the anger. He
didn't think there was going to be any real benefit from it. That was his position at the time.
I think he, we, all under-estimated the Korean community.
Being of Asian-American ancestry, I don't think the Chinese and other demonstrators had the
kind of vigor that the Korean community had. But I think people never realized the loss the
Korean community suffered. There were families that were devastated. What most people never
understood about the Korean community is that people who had come here had pooled their
money together as families, and bought businesses, and had an obligation to pay back to that
family, organization, or friends. Then they took the collateral from their business and bought
another place. So they were spread very thin in a lot of situations. Once one place burned down
or was damaged it had a significant effect. It has this domino effect on many of the families in
the Korean community. It was really devastating. We had a number of Koreans leave the
country and say, 'Forget it, I'm out of here, I'm going back to Korea.' They just could not ever
dream of becoming whole. So when you face that kind of devastation, there is definitely a sense
of hopelessness and in some ways, it was therapeutic to march and demonstrate. They didn't
have any problems getting people out because at least it gave them a focus and a direction and
some hope. So these demonstrations were vigorous. They didn't stop.
Question:
And your role during those demonstrations?
Answer:
It was to be right there as a liaison. When they said we're going to be here from this point
to this point, we were there at that point to make sure that we were going to be there for that
liaison between the leadership and the police. Constantly serving as liaison to diffuse anything
that may come up. And things came up all the time. Fundamentally,
our role is to insure that the first amendment rights of any American to speak freely and to
demonstrate are protected. CRS by maintaining open
communications lines open is able to diffuse tensions and mediation conflicts that may arise.
Question:
For example?
Answer:
The Koreans had a pickup system. They would bring these vans in, and hundreds of people
would line up to get into the vans to go back to Korea town. It seemed to not be a problem, but
then some of the bus drivers started complaining that they're blocking the way. So the law
enforcement parkers decided to come in and give tickets. Well, the Koreans already felt hurt;
they had already lost too much. They said, "We're not paying tickets!" and several Koreans
began to tear the tickets up right in front of the officers. One of the law enforcement parking
officers went berserk on us. He started calling, cussing, and arguing with these people. He
called for backup, and all these midget cars come in from parking service like it was a
showdown. And I'm going, "I can't believe this." So we go in and
intervene and say, "Wait a minute. Stop! What are you doing?" We could tell by his behavior
that he was a non-compromising skill kind of guy who was going to get his way, or else. I said,
"I want to see your supervisor." So we had to flash our DOJ identification, tell him who we are,
tell them what we're about and say, "We need to see your supervisor. You don't need to talk to
these people." We waited for the supervisor, Meanwhile all these cars are flying in on
us. It could have gone crazy right there and then. We finally get a supervisor and explain to him
what's going on, and he says, "Okay, don't worry about it, drop the ticket. Let me get my guys
out of here first." I said, "Okay, please." It just takes somebody with a level head that
understands the dynamics that will say, "Look, you guys are being inconsistent. You let them
park here for several days, and now you're enforcing parking restrictions all of a sudden. We
gotta work this out. This wasn't fair to the Koreans." So we were able to negotiate a different
route and work all that out.
Question:
And that was typical of what you were doing?
Answer:
Yes, it was conflict after conflict all the time.
Question:
How long did the demonstrations continue?
Answer:
Well, we didn't make the whole 30 days, I know that. I remember getting to the 15th day
and saying, "These people are obstinate, this is amazing." I just didn't think that it would be
sustained. Around the 17th day I think they decided, "We can march all these days, but they
don't get it." That's when they decided to go into the building. It was interesting because they
kind of played with the doors, to see what the reaction was going to be. They'd stay around the
doors until bottles were thrown on them. They would hang on these doors, then start marching
again. The police would always meet you right at the door and say, you can't go through here.
The police were adamant, they were not going in. I think one day they found a back door, or
some way to get in, and they went right into the city hall. Now we had
300 people right in the middle of city hall, blocking the whole main floor, demanding to see the
mayor. I told the sergeant, they're coming in. And he says, "Wait, wait, hold them off." I go, "I
can't. They've asked for this meeting." So now they are panicking, and willing to do more all of
a sudden. The message came out from the mayor's office that he would meet with a delegation.
"Figure out who they want, how many people. He will meet with you this afternoon, but you
have to clear out." So we convey the message and we negotiate all this. I don't think they trusted
the mayor. I think we stayed there. The mayor said, "Okay, let's move the meeting up, get your
people." So now we're helping them. "So, who are you going to get? You only get so many
people." " No, no, we want more people." And it was all right there on the floor of City Hall, all
this chaos.
Question:
The mayor set the limit?
Answer:
The mayor set a limit. They tried to raise the limit. They cleared the floor. I think this was
a little bit of a compromise. We got a few more people in, and they made their selection and they
went in. Then it was a matter of, "Let's go over the agenda. What are you going to talk about?
We've got to get some framework to this. It was amazing to me.
Question:
Did you bring that to their attention?
Answer:
Oh yeah. I pulled all those ideas together. Actually, when we got to the table, I sat at the head of the table and I framed the
mediation process right then and there, and opened the door to the key spokesman of the Koreans
to start them off. Then the mayor responded.
Question:
The mayor was comfortable with you at the head of table?
Answer:
Yeah, he didn't want to be there at all, but he didn't want to be in the middle of it either.
He wanted somebody else to be at the head of it. So I could see the politics that he was playing.
What amazed me at the table was that the Koreans, I
thought, didn't raise all the issues. I had to remind them of some of the other issues. I had to say,
"Aren't you going to talk about this issue?" I knew they weren't going to have that many
opportunities. If you didn't get it on the table, then they're going to want to come back.
It behooved everybody, I thought. I didn't want to be an advocate, but I certainly didn't want to
leave the table without their issues being addressed. Otherwise we might have to revisit this
whole scenario again.
Question:
Were you able to do this without appearing to be an advocate?
Or were you an advocate? Was that okay?
Answer:
I don't think I appeared to be an advocate because I didn't speak for them. I basically
reminded them that we had an agenda and there were issues that "you" wanted to bring up. "If
you don't talk about it now, you won't have a chance." That type of approach. I don't think
anybody perceived me as being an advocate. We didn't get a
written agreement. It was more of a conciliation. They had to hear from the mayor exactly what
powers he had and what his intentions were, and what he could and could not do. The mayor, as
politically as he could, said, "We're not the vehicle for relieving you of your problems. The
proper vehicle is the federal government. We have the Federal Emergency Management Agency
here that will be looking at all those issues, and looking at what your damages are and trying to
rectify with you. He didn't say they were loans, he said, "They're the vehicle." I looked at the
Korean community and they go, 'You don't do that?" We had told them all along that there were
these different ways of doing that, but until they heard it from the mayor, they weren't going to
accept it. They thought the city had some obligation too. The city did tell them what they could
do and what they were working on, and what kind of business support they were going to give
and so forth. They needed to hear all that. So that was a point of clarification.
Question:
When you respond to volatile situations, are you ever asked to
do things that you can't do?
Answer:
Yeah. They want me to go get the mayor. They expect us to, and in most mediations they
want to get their point of view across and they want us to be an advocate for them. We have to
explain to them why that's inappropriate for us to do, and what our role is. "Our role is to try and bring both of you together and to work with you to see how you can
come up to some kind of agreement to resolve your issue. We're not going to take your issue and
fight it for you, that's not our role. What information you share with me, sometimes I share with
the other side, and if there's something you don't want me to, you need to tell me, because that's a
big part of bringing you both together to resolve it. You guys own the problem."
Question:
Did that confidentiality you promised them ever create a
problem? Were you always able to stick to it?
Answer:
To my knowledge, I have. I don't know when I've broken confidentiality. When I talk
about confidentiality, you know we have press conferences after some of our mediations. All I'm
saying is that, we don't talk about specifics, or what's discussed in the mediation.
Question:
But you've never had a problem telling a party, receiving something in confidence, that you
then feel you need to share with the other party?
Answer:
I may feel that it's the right thing to do, but I have not stepped over that bounds, unless they
have given me permission or unless they've conveyed it, I don't think I've ever violated that
confidentiality.
Question:
When you're in your office and you are alerted to a conflict in a
community, how do you tend to respond?
Answer:
What I do is, I look at the source of the referral and I try to dissect who do I need to talk to,
depending on the kind of case. If it's an excessive use of force case,
I'm looking for who is the spokesperson for the complainant. Usually it is the NAACP, CORE,
SCLC, sometimes some community spokespersons evolve. So I'm looking for linkages to the
complainant side. My next step is to move out on to the scene and to begin an
assessment to determine what the issues are and whether there is an appropriate role for CRS.
Question:
Is that where you start?
Answer:
Well, I'm looking at analyzing the conflict to figure out where
or who to contact next. I'm going to look at all sides. What police department, who do I know
that knows whom. In Long Beach, I've had such a long association, I've known the last three
chiefs, I even think I know the up and coming chief. I have several advisors in the minority
advisory committees that I've worked with over the years, and I've worked with the community
relations division. So I'll start with the Community Relations Division, and figure out, who's in
charge of it, who's doing it. Then I'll hone in on the police side. But the community
side is harder to evolve if you don't have a clear organization that's championing the issue.
And it isn't automatically in our jurisdiction unless there is some kind
of party that represents the complainant. If it's an individual shooting, and there's no organization
behind it, it's not jurisdictional to us if it's just an 'individual' complaint. I have to evaluate that
immediately as I go along. So that's a big part of our assessment. One, is it racial? And two, is
there a party involved? There have been times when I have conversed with an individual family
and said, "you know, it's really not jurisdictional to us, unless you get an organization to work
with you, I can't work with you directly." And they make a decision as to if they're going to
involve NAACP, or some organization to work with them so that we have a legitimate party
involved. After I assess that, and determine where to go, I
usually call the complainant first, and do my analysis, and try to get that face to face meeting.
While I'm getting ready to have that face to face or have that meeting set up, I will call the other
side whether it be police, corporation, school institution, university, whatever the other party is.
I will call the leadership and say, "I'm from CRS of the U.S.
Department Justice, I'm a federal mediator, I'm attempting to assess a possible race related
conflict in an effort to reduce or resolve it. I'm in touch with the other parties, you need to be
aware of that. I want to meet with you at some time also. So I want to let both parties know that
we are there, and that my intentions are to meet with each of them. I
usually meet with the complainant party first, because the institutions often don't know what the
real issues are. They don't know who the complainants are or what they're planning to
do. They often look to CRS in some form to help clarify what's out there. So if I go to the
institution first and meet with them, I don't get that much. If you meet with the complainant, you
get the details of the levels of mistreatment, the full allegations, the level of temperament, the
coalition of organizations. You get a flavor of what the protesting body is about. The
institutions usually very much appreciate understanding all those dynamics. So that's why I
usually go from the complainant side to the institutional side.
Question:
Are you ever asked not to tell the other party that you're coming
in?
Answer:
Well, they probably have said that to me, but I say "I can't, I've already done that. I'm
coming in to try to resolve the conflict, I've got to work with both sides."
Question:
Do you ever get asked not to come in?
Answer:
I'm sure somebody has told me that (laughing). The BIA (Bureau of Indian Affairs) calls
me sometimes, I work with the BIA on Native-American issues. They'll call me sometimes and
say, Steve we've got these two tribes and two contingents of families that are vying for the
leadership of this tribe. It's gotten really violent, we've had shootings over tribal governance,
housing, employment, and other kind of stuff. One place, was the Roundtable Rancheria. I went
into Roundtable right after they had a shooting. The entrenchment and the level of tension
between the two tribal factions was heavy. They told me over the phone, "We don't want you in
here. You're just another government agency." I try to explain that we're not the BIA, because
some of the tribes have a total dislike for the BIA. When I explain I'm with the Department of
Justice, that I'm a federal mediator and that I've come to help resolve their disputes, sometimes
they let you in, and sometimes they don't. And that's fine. I mean, if they don't want you in, they
don't want you in. I don't think I could expect to force myself into every situation.
Question:
Have you ever managed a case over the phone and not gone
onsite and yet provided some assistance?
Answer:
Yes, because during the civil unrest when I was working with the Korean community,
I got a call about a riot in a school in Long Beach. The principal says,
"Steve, I need you now." I said, "I can't come now. I'm tied up." And she said, "But we've just
had a riot, this racial group and that racial group fought on campus during lunch and I don't know
what to do. We've suspended so many, but the students are coming back soon. We've still got a
lot of tension." I actually prescribed a strategy over the phone to the principal. We
talked every evening about where we were. I tell this story all the time because it's amazing. I
talk about it in terms of how we can trust kids and when they give their word they mean it. When
problems occur, we've got to figure out ways to really empower students to be a part of the
solution. What I told this principal was, "Do you know the players, do
you know the real players that were involved in this altercation?" She said, "Yes, between the
counselors and security, we know who the players are." I said, "Okay, bring them in, one by one.
Tell them, you need their help. Tell them 'I want to make sure that we bring this school back
together, and I need your help. Will you help me?' You're the principal of the school." And she
said, "Oh yeah, just bring them in one by one?" I said, "Yes, see if you can get them to support
you." "What happens if they don't?" she asked. "Keep them on suspension."So I called her that
evening and she said, "Steve, every one of them gave their word. It's amazing, these are great
kids." I said, "Yeah, they are. Have you never met them before?' She said, "Now what do I do?"
I said, 'Ok, they're keeping their word, they're helping to keep things calm?" She said, "Yeah
they are, but I don't think I can just leave it like this." I said, "Now that they've made a
commitment to you, you can bring them together as a group. So bring the Samoan kids in.
Remind them they've already made their commitment, that they've individually given their word
so that peer pressure doesn't take them to another level. Then talk to them about how we need
you all to control not only yourselves as individuals, but also others to help diffuse the tension
here. Then bring in the other group and do the same thing." So she talked to them and she said,
"They all agree, we're all on the same page. Things are still okay." I said, "You still
have some kids on suspension?" "Well, they're coming in," she said, "they're giving me their
word." I said, "Ok, you're moving along. Now, you need to decide when, but at some point we
can bring them together and we can get them to figure out what the issues are, and to problem
solve it and come to some solution on this. Are you comfortable with that?" This is about a
week into it. She says, "Well, they've kept their word so far, and I've gotten to know them, and I
know the leadership pretty well and they really are working with me." I said, "Then you're ready,
bring them together. Let's go."So I did it all on the phone over a series of a week. She and a
couple of counselors worked through that whole process with the kids. We did it by phone.
There's just no way I could have been there.
Question:
Thinking of communities where you go in unknown, as
opposed to those that you know so well after all these years, how do you identify the underlying
issues in a conflict when you intervene?
Answer:
I'm trying to get a good example of that. I'm sure I made a lot of faux pas on a lot of the
Native American stuff. But you're thrown in. You have BIA to call, and you talk to them over
the phone and you say, let's see if we can come to the table and you get a commitment from both
parties and your land on the reservation. Now you're meeting with them. You have somebody
arranging for one group and somebody arranging for the other group, and you're going in cold.
Usually I'm flying to some place, and then drive forever to some rural reservation. It's not
something where I can go in, warm myself up, and really build a relationship before, and come
back and forth several times to conduct a mediation. It's almost like we've talked on the phone,
and we're ready to go. We're almost there, but I want to meet with you alone first before we
actually try to see if we can get to the table. Maybe not today, but maybe tomorrow, certainly not
more than a day or two. So, I'll sit on the reservation for a couple days and see whether we can
get this thing to move. That's about as cold as I've gotten.
Question:
Do you find the issues that brought you in are the most
important ones you have to deal with?
Answer:
I think the issues that they convey to me usually are key issues, but oftentimes nuances
come in that nobody shared, and you don't learn about those until you come on site. It only
comes through in your private meetings with the parties, and your discussions with individuals.
Then in a couple of cases I've had sheriffs escort me for my personal safety and to give me some
background. Then, they tell me, "Do you realize what had taken place here? What's the history
of this tribe? What the families are like? These guys are felons." And all these things come out
when you're just dropped in there and you're on the site. So it's really just becoming a sponge.
To me it's like, you're going through the setting, and you sit down with people, and you try to
observe and absorb as much as you can. You're just probing, you're reading peoples' behaviors,
you're reading their styles, their trust levels, and you're hearing the messages. Then you go to the
other side, and they're talking about the same issues, but it looks like a whole different world. As
the mediator, you're kind of stifled because you have these broad differences of views on the
same relative issue in history of these parties. So it becomes valuable to get other peoples views.
For example when the sheriff as an outsider says, "Well this is the way I see it." I'm hearing from
different people in the area to kind of get a flavor for what the parties may be withholding, and
the way they slanted things, versus the other party. The perspectives of somebody neutral who
may have seen the same history and experiences and seen the tensions arise between the parties
are invaluable. I just feel like I'm a sponge, and I'm trying to find some sense of the truth there
somewhere, because I'm not going to get it from the parties. I know it because they're coming in
from such biased perspectives. I often use what I call the Forced
Field Analysis, where you look at the issues and you look at them by rank order, and you kind of
line the issues up juxtaposed to each other by rank. Then you really take to heart the opinions of
those people that you felt were neutral and very objective about the disputed issues to try to see if
you can bleed some truth and logic into the sequence and the viewpoints of the parties' positions.
So that's the way I approach it. It's very intuitive, but at the same time I'm relying on as many of
the neutral perspectives that I can get because I think that objectivity lends some credence to
some of the very biased views of people involved in the conflict. That's the best I can do in those
kinds of cold situations. Sometimes you need time to bleed out the truth by getting to more
levels, in-depth levels. Too often, we just don't have the time to do that, so I have to
take that intuitive position and then attempt to work through it. When you get to the table, the
biases work themselves out. When somebody makes a demand or an allegation about an
injustice, the other side could counter it. The truth kind of works its way out, just by saying, "I
don't understand how you can make that allegation, because I see it this way. Can you see the
other person's point of view? Does it sound the same? There is some miscommunication here,
and I want to see how we can sort this out. Can anybody state that again or reframe this so I can
get it?" I'll play dumb and bleed it out until they shake loose and we get some concurrence or
interpretation of what in fact took place, and can begin to find a solution. I think it's a very
intuitive process.I think it's important to find other neutrals.
Question:
How do you identify them [neutrals]?
Answer:
Well, in any of these groups that we work with, there's a range of personalities on any side.
You have the adamant positions, they're wrong, I'm right, I'm going to get my piece. Then you
have the hangers-on who don't see it at the same level of compassion and anger, and they tend to
be more objective. I look for these people because they are very important in preparing for the
mediation process. In our mediations, we usually have 5 to 7 people on either side. If you
diagram the personalities that sit at the table, I kind of hone in on who I can depend on in really
being my aides and will assist me, who are the ones that are basically just position bargainers,
and which are the ones that I can count on really giving me a more objective insight. So,
working with the personalities and the positions of the parties themselves is important in
knowing who to go to, who to ask questions, who to diagnose the problems and issues with and
who might give you a possible solution, etc. Even within the parties you can find diverse views
and position to help the mediation process.
Question:
When you come into a case, does your own race or ethnicity
play a role?
Answer:
Well, being of Asian ancestry, I think it has really been an asset in a lot of ways. I'll tell
you why. With Native Americans, they respect Asians because we have a strong family values
and a high regard for education. When I talk to Native Americans, they say, "Oh, your people
believe in family and elders. They hold a high respect and reverence for families and elders."
There's a click there. They can identify with that. When I work with Latino community, they
tend to be more passive and they tend to have strong family convictions, and they respect that of
the Asian population. When I work with African-American communities -- I used to live in
South Central -- often I fall into Black dialect very naturally. When I tell them I grew up in
South Central, and where I grew up and what church I went to and all that, it takes a lot of
tension and distrust out of the relationship. Asian Americans are accepted as minorities that have
experienced prejudice, and that opens doors for me in race related mediation.
When I work with Asians, they probably distrust me the
most. I remember one case when I was dealing with African Americans and Koreans.
I met with a former African American Vietnam Veteran, and he
looked at me like, "What are you doing here." So I explained that I was with CRS and I'm a
federal mediator, and I've read about the dispute you have here, and understand there are several
complaints with regards to this Korean swap meet. Really, my role is to try and bring you and
the owner of the swap meet together and see if we can come to some resolution other than
violence. Then I started talking about where I grew up, what things I had experienced when I
was young, and I said, If you have any discomfort with me as an Asian American, that's no
problem, we can always get you another mediator. He says, "No, you're okay with me."
And I remember at the table, one of the things I did on that
particular case, knowing that both Koreans and African Americans value religion and have very
strong Christian ethic in both communities. I naturally picked a neutral church in the community
to be the place for our mediation. It really took the thunder out of a great deal of the animosity.
But at the table, we had a big language problem.
The Koreans has such strong accents, I couldn't understand them. The
African Americans couldn't understand them. We had one African American who worked in the
swap meet who was our translator. It was just amazing. The candor of the
discussions and the open realizations that African-Americans went through and that Koreans
went through and their thankfulness that they shared their real feelings as people about why
Koreans followed African Americans around in stores, why the Koreans look angry and then now
to smile and other nuances that they didn't understand. What one culture felt was a better
alternative to a real demeaning and discourteousness act, was found to be a taboo or idiotic thing
to do in another culture. I had an easel and I wrote the agreements that they came up with, I
wrote them out because we knew language was a real barrier so we wrote out everything that they
concurred on. Then I went and asked the Korean community if they understood each issue and
proposed resolution, and would ask, "Are there any questions?" I went through tediously
pointing out exactly what the exchange was, what the agreement was piece by piece.
But I think race has not been a problem for me because I
grew up in a multi-racial community and I think I have strong interpersonal skills and for that
reason it hasn't really come up. In particular, communities often say we like your people because
I know they are really looking at me as a cultural person.
Question:
Do you help parties prioritize their issues?
Answer:
Do I help them prioritize their issues or do I take their issues and put them in priority
order?
Question:
Help put them in priority order. How ever you want to define it. Help them prepare to
come to the table.
Answer:
What I think I really do is I listen to them and I take their priorities as they give them to me,
as I see them. I analyze them against the other parties' priority issues
and then when I write the issues down I try to manipulate them so we work from the easiest to
the hardest. At that point, I share the issue with each of the parties one at a time and gain their
concurrence. The parties are also given a chance to add or delete issues. I generally do that all
the time because I want them invested in the process before we get to the real hard ones. I've had
situations where I've put hard ones on the front end and we couldn't get through them and there
wasn't enough good will established to get through that issue. I've always found if I
put the easiest issues up front that by the time we hit the lower issues they are either never going
to get there, or they would feel that they've invested so much that they would work through the
more difficult. So I've always used that approach.
Question:
What about issues that maybe they couch as non-negotiable or
that you think to be non-workable. Would you help them to reframe them?
Answer:
I'll give you one story; I do a lot of Native American stuff I guess. I was working with the
Irvine Corporation on the Newport Channel Island Development Project. I was working with the
Gabrielleno Indians and we had a whole agenda of issues. Right off the bat the Native
Americans looked at this particular mound and said, "This is a sacred mound and you shouldn't
build here." The developer looked at the Native Americans and said, "Wait a minute. That's not
negotiable. That's why we're here. Period. This is a million dollar operation and the only reason
we are building here is because of this view looking over the Bay to Catalina. This is not
negotiable." Now, what do I do? So I look at the Native Americans and say, "What do you
think?" They got it. It's not negotiable. They had a whole list of stuff, so they dismissed it. It's
not for me to say, "Well why don't you negotiate half of that mound?" I understood exactly what
they were saying. The other thing that I need to convey to you about
negotiation in these kinds of cases is there is law behind mediations for historical sites and
Native American repatriation. The law says that when remains are found that they need to call
the Native American Heritage Commission and they need to call a coroner. The coroner then
makes the determination that these remains are Native American and calls the Native American
Heritage Commission to determine who the most likely descendants are. Then the most likely
descendants have the right and must be consulted with in remedying any process in the treatment
of remains. That's what the law says, but it's permissive law. Its not "shall," but "may."
So I know legally that the corporations technically could dismiss the Native
Americans complaints so that's why if I was to try to press the developer -- I wouldn't do it
because it's not for me to do -- but if the Native Americans feel they could press the developer
they may more then likely hit a stone wall and lose cooperation on other matters. Really, the
corporations are doing this somewhat at good will and for public relations purposes by and large.
They could comply with the law by doing very little. I've always felt that the law was too weak
in that sense. I guess there have been times when reframing, caucusing, or just clarifying what
and why something is non-negotiable has helped to move the parties.
Answer:
Did I ever finish that question about compromise and
demonstrations? That was the thing that stands out to me when I think about the Riverside
situation. How long did they need to protest to leverage the system to respond versus would the
system respond differently if they didn't do a year of demonstrations?
Question:
How do you determine, when working with a group, how to influence leadership and the
appropriateness of it as well?
Answer:
Yes. I'm a true believer that eventually we are going to have to get to the table if we are
really going to make a change. I think as soon as we move from anger and blame, we're ready.
As long as we aren't so emotionally driven we can't do something constructive, then we are ready
to move progressively to some kind of dialogue on these issues.
Question:
How do you move the parties then, toward the table, when they
are apparently more inclined to stay in protest mode.
Answer:
In many of my police excessive use of force cases, I use the diagrams on where the parties
are on the continuum of a traumatic incident and what the expected behaviors are that
demonstrate shock, denial, anger, and blame. When you are emotionally driven and are venting
you are in demonstrations and marches and so forth. When you have accepted it you are ready to
say what can I do to make a difference in the long run. Particularly in excessive use of force
cases. I usually go "Look, I understand that we wish that our loved one (Taisha Miller) wasn't
killed, that she could still be with us. But unfortunately we need to accept that she won't and that
we can't bring her back. But what do you really want to accomplish?" Inevitably communities
will say, "We don't want it to happen again." "If you don't want it to happen again, what do we
need to do to make a real difference. Do we need to put a system in place to make sure the police
are trained right? Do we need to look at these police officers and see that they are reprimanded
properly?" All the possible issues that remedy that point. When they are ready to discuss those
the issues is after they come to that acceptance, then they are willing to look at the possibilities of
constructive prevention on these shootings.
Question:
So you use your chart to drive that point and it works for you?
Answer:
Yes.
Question:
What about the flip side of that. Have you ever had a situation
where you felt the government or responding party was coming to the table in bad faith and the
protest really did need to continue?
Answer:
I think I've been in situations where the institution was only willing to give up a minimum.
They had a position and they were willing to come to the table, but they weren't really reflecting
on that decision in any real constructive way and possibly more protests would have changed the
attitudes that were possibly insincere or insensitive. I think there have been situations where I've
seen that kind of behavior, but its hard to assume continued protest would have changed the
outcome. If groups are going to sway bad faith negotiators it takes more than protest. But that
could happen in the opposite way too, I'll give you an example. I had a
case where beatings took place on television, just like Rodney King, and the Hispanic community
was very upset. There were demonstrations and marches. We finally got the Hispanic
community to sit down with the county sheriffs. The county sheriffs felt they were in for a
shellacking. Yet the community asked for nothing. I thought we had a real open situation where
the community could ask for a number of mechanisms and strategies to avoid that kind of
beating, poor police protocol, and use of force. Yet, when I got the parties together I wasn't able
to clear out the issues. They knew what they wanted, they said, and I was trying to get them into
the meeting. But when they came to the table they just asked for an advisory committee to the
sheriff 's department as a mechanism for long-term discussions. They didn't want any precise
preventions for that kind of act. It really surprised me and kind of flabbergasted me because the
institution was willing to give much more then what was asked. That was the opposite of your
hypothesis. You can get it either way. Prepared parties for mediation is so important.
Question:
When that happened did you work with the community to help
them understand that they could be asking for more?
Answer:
You know, I didn't know if I would overstep my bounds in that situation. I thought it was
incumbent among the community to decide what it wanted. The opportunities were there. They
needed to say what they wanted and needed and I felt that if I prompted anything it would be
perceived that I had lost my neutrality and I was pulling stuff on the table in front of the county
sheriffs. I felt they had a much stronger position then they recognized.
Question:
Could that be shared in preparing them to come to the table?
Answer:
I thought I was dealing with a fairly sophisticated group and I didn't think I needed to do
that, but it wasn't something I openly shared with them.
Question:
Then the sophistication of the group becomes an important factor in how much assistance
you feel a need to provide.
Answer:
Yes. We had university professors in that group and I thought they could champion and
knew that community and I didn't feel that I needed to do much more with them, but I guess they
weren't street-wise in that situation. I thought they needed to get into some substantive kind of dialogue on possibilities.
That was my personal opinion. It wasn't something that I conveyed because I didn't think it was
my place to do that. They got what they felt they wanted and it was concurred on by the
participants. It seemed to have worked. I haven't had any problems in that community
subsequently. That's where a mediator doesn't own the agreement. We bring a process and we
facilitate it for them and they've got to own it. I just didn't think it was my place.
Now, in another case -- I'm just trying to give you
all the dynamics of this -- I had a case where a police department collaborated with the INS to do
a series of sweeps in a community on undocumented immigrants. They had done so many
sweeps that they unknowingly swept in Mexican-American citizens, maybe 35 or 40 of them.
They then faced a $35,000,000 suit. I met with both parties and I could have taken them to the
table, but I told the Latino leadership, "I'm going to remove myself from the mediation because
this type of violation is going to occur again until you get some kind of principle in law that
prevents it. I think you have something to get the attention of the institutions. If you mediate
this situation, there won't be any standard by which to terminate this kind of discrimination and I
think something needs to be put on the books." I left them with that. You know, you mediate an
agreement and that town has the agreement, but they were in the position to really put something
in the legal system, in the courts that could sustain some guidance when dealing with
undocumented immigrants and sweeps that effect U.S. citizens. At 35 million I thought they
would get the attention of a lot of cities and a lot of agencies and I thought it was important to let
the case go forward. Little did I know that they would settle this case for a meager $400,000.
For me I said, "We could have mediated that!" I didn't know where the lawyers were coming
from. Again, it's a judgment call that a mediator makes and I didn't want to get in the way of
something that I thought was very precedent setting for the Nation and for their community.
Those are the kinds of judgments a mediator can get into. A year later, the New Jersey State
Police publicly admitted to profiling against African Americans.
Question:
So in that case you decide to withdraw even though they were ready and willing to go
forward with mediation?
Answer:
Yeah. It wasn't exactly there, but I felt I had a good chance. Who knows?
Question:
If you have a relatively unsophisticated group do you
sometimes put them in touch with third parties like lawyers or activists who you think might be
able to give them information that you feel you can't give them without compromising your
position.
Answer:
Again, I was brokering lawyers in that particular case. These were lawyers who had
already filed a $35 million dollar suit and they were the representatives of the parties and I was
potentially going to mediate their lawyers and the INS and the city that would put the police in
that position. So, those were the parties. Again, maybe it was a fault in the sense that I felt that
the sophistication was there. You had your lawyers, you had your party, you had your class
action suit. These lawyers would know the value of this case. So, again, I thought it was a more
sophisticated group and would take it and set that precedence, but evidently they didn't see it or
maybe the case wasn't as strong as they thought. I think we have to
look at what is our role and get out of the way sometimes for the sake of valuable principles that
need to be set. Sometimes mediation can be a compromise we need to get out of the way because
what we do in mediation doesn't stand up in the courts and have the same precedence that
sometimes the courts need, that society needs. I think we need to look at disputes from a variety
of views.
Question:
Have you ever felt so strongly about an issue or situation that
you felt you couldn't be impartial?
Answer:
No, I tend to be a very reflective person. I tend to be able to
distance myself from my personal feelings and the issues, so far in my career. I know there's
certain issues like excessive use of force that I have some biases opinions about. I certainly do
have biases and very strong convictions about what I feel to be repeated misjudgments. You get
to a point where you feel something more significant has to be done. I'm constantly talking to
CRS people about what are some of these other mechanisms. I do feel a sense of emotionalism,
but I don't let that cloud what I'm doing with mediation. Just because I have my biases and my
emotional feelings that I should not lay my feelings on anybody else. You get my drift? I mean I
do have very strong emotions about some issues of our school systems and what they don't give
in terms of equity or quality education and yet I can't lay my judgments on the parties and their
disputes in mediation. I don't think my objectivity has been compromised so far.
Question:
Are there things that you do to manage the party's perceptions
of your neutrality?
Answer:
Besides telling them? I think it's very important to give equal time, to demonstrate equal
interest, to facilitate and to not get caught up in judgments. All of those kinds of things I think I
have to manage to avoid getting caught up or being perceived as bias in any way. I do a lot of
pulling out ideas from people, but letting them own it. I try to stay out of it as much as possible,
I think that's the only answer I can give you.
Question:
Have you ever been accused of being partial, not objective?
Answer:
Yeah.
Question:
How do you deal with that?
Answer:
Defensively. I try to clarify where I was coming from. If they claim that they felt I made a
statement that seemed to be a biased or an advocacy position for one of the parties, I explain
what I said, why I said it and why I don't think it was intended to be in that vain. Usually that
clarifies it. It may sound defensive, I don't know. That's in the eye of the beholder and they
haven't told me yet. I think it's important that I justify and explain where it's coming from and
feel free to say that if it's perceived as bias, that's your perception of it, but I don't think that I
violated my neutrality.
Question:
How do you see your role in regard to the fairness of the
settlement, in terms of what you think to be fair?
Answer:
Well, I don't get into that. When we reach the final mediation, I say "Okay, I'm going to
write this up, I'm going to send it to you. I want you to look at the terms of the agreement, and to
make sure that you can live with it, follow it, do it, and then we'll come together and sign it. I'm
going to give you a couple of days to look at it then we'll reconvene." So, I want to be sure that
we took time, and let them have the last word and let them be able to look at it and conclude
"This works, this works for me. I can live up to it. It's a good agreement." Sometimes they say,
"We need to come back together." I say, "Fine, let's come back together." So, I don't want
anybody to feel jammed, but I want them to look at it with the time and the opportunity to look at
what are the consequences of this agreement, are there things you don't want to happen, can you
live up to this agreement, is it meaningful for you, does it accomplish what you thought it needed
to accomplish? Then they will come to the signing and we will do that jointly. I think that's
the way I handle it. We don't all have that luxury though.
Question:
Do you have techniques you use for reducing tensions between
the parties?
Answer:
Sometimes they get hot and I have to watch the parties and see what level of tolerance one
has of each group. I read the behaviors and decide whether to ask them to calm down.
Sometimes I call for timeouts and ask for caucuses. There have been
times where I've said, "Wait a minute, we need to review why we're here and what tone and
ground rules we've agreed to abide by. If I sense some discomfort by some of the people, I'll say,
"By the behavior of the individuals there seems to be a need to take some of that tone out of
here," or "Could we take a time out?" At that time I can meet with individuals to draw out that
person and speak to that person directly and say, "You know you're creating a level of hostility.
Do we want to move forward in working towards a solution? We're not going to cut
you out of getting your voice and what you want to accomplish, but the tone is going to possibly
harden the other side, so it depends what you want to accomplish here. Think about that as you
convey your issues. You could be passionate, but don't get to the point where you're so
aggressive that it harms the process." I think those are the kinds of techniques that I have used.
Question:
How do you deal with parties if you
sense they're only giving lip service at the table and aren't serious about making concessions or
changes?
Answer:
Well, one way is to go to the opposite party and say, "Did you hear that? What did it mean
to you? What did you hear them say and whether you felt if that was a good suggestion and how
do you feel about that?" And let them speak for themselves rather than me getting into it. I may
caucus and say, "They gave up a lot more than you gave up, are you going to meet them half way
or what?" I may caucus and say something like that. But I think it's better if the parties hear it.
There have been times when I say, "What did you think about that?" and they say,
"That sounds all right with me." I go, whoa, what am I dealing with? That's a whole other alert
that I've got to say. Now as a mediator, I think we are looking at the agreements and saying "Do
we really give something in value and do we come up with a good agreement? You know an
agreement that will really resolve the problems or will it just be a temporary Band-Aid that will
come back at us?" So that's where I think we have to beg the question sometimes and maybe
prod a little bit in terms of well, let me paraphrase what I think he said and say it in such a way
that it's slightly demeaning and see whether we can prompt an understanding of why it might be a
very artificial kind of offer. But I think the party has to see it themselves. I think we'd get into
danger if I were to say, "I think that's a nothing statement you made."
Question:
You talked about how you build trust with the parties. How
about building trust between the parties?
Answer:
Well, I think agreement is that process. The other
thing I wanted to mention about tension is I think it's always good to bring humor. I have a very
light humor. They always say something that you can play off on that you can stay within the
context and still be light enough but bring enough humor to defuse some of that tension. I think
humor is a very valuable tool. Some people know how to use it and some people don't. It's
tricky, I know, because you can get hurt with humor sometimes, but I found humor to be a very
meaningful way to relieve tension and a valuable one.
Question:
Do you have any examples or guidelines for humor?
Answer:
Well, now you're asking me. I can't tell jokes, I can't remember. Maybe, the things that
you play off on are things you hear and the misinterpretations we have and using yourself as the
vehicle for humor versus any of the parties. But, everybody will say something and then they'll
know it's a miscommunication or it's a faux pas of some type and you catch it and you go "Did
you hear that one?" Just a light playoff on words sometimes can relieve a lot of tension. When
you see the parties warming up in that vein of a little humor sometimes, it gets a whole lot of
invigorated faith in the other person's ability to recognize that the other party is just another
human being with needs and interest just like me.
Question:
Do you deal with power disparities in bringing parties together?
Answer:
That's why I think our pre-mediation process is so valuable
because we need to, in our own way, have the parties believing that they're going to have a fair
shake at the table and that they come to the table with leverage as equals. Certainly
when you're the institution and you have all the power and you have a complainant, there's no
way to say, "You're all equal." In the same token, you're not armless as a complainant and you
have options. We need to level the playing field as we come in and we need to build and
organize and at least get them to understand that their issues are valid. They have a right to
bring these issues forward and that they should expect some give and some take. It's not a one
way street and they have the right to that. In that sense, empower them to come to the table as
equals. I think sometimes, particularly with community
organizations, we have to spend some time in the pre-mediation preparing them for that. That
sense of empowerment and valuing their position in their ability to expect some take as well as
some give. (Interview is interrupted by a cell phone call for Mr. Thom. He takes the
call and then talks about it)
Answer:
Can we pause a moment. This guy runs an office of one of our
senators and I periodically brief him on what tensions are out here and what some of the
dynamics are so that they can anticipate. They wanted to know what legislation and what
learnings they could get out of the police shooting of Tiasha Miller. The patterns that we were
seeing were that we were just following the second generation of President Clinton's police
hiring and they were hiring faster than they could train. They are also facing a lot of early
retirements, so they had people who were in charge of training who only had five years
experience in police work. So you have the candle burning at both ends. If you look at some of
the recent shootings, officers with only 1 to 3 years of experience have been involved in these
shootings. You remember one officer was on probation and other officer who broke her car
window, I think was only a first year police officer. So, you have kids that are being thrown into
very tense situations with limited sophistication and experience to know how to handle them.
I've talked to the senator's office about what intervention things we can lend to the mix to try to
avoid these kinds of situations. There are always patterns to all of this and you've just got to
diagnose it and try to figure out what you need to do. These options can help. That's why CRS is planning to train police officers in mediation as a possible tool for
diffusing violence.
Question:
Tell us about that police officer training.
Answer:
We've decided as an agency to train police officers in mediation. We talked to police
departments and looked at the pattern of their training. In terms of tactics and use of firearms
and all the mechanisms how to use the nunchucks and how to use the beanbags rifles and how to
use all of that. About 70% of the training of police officers coming into the academy are in those
tactical techniques. About 30% are in how to relate to people, how to communicate better, how
to get people to voluntarily cooperate, all those kinds of people skill tactics. Then we've had
officer experts tell us that if you look at the amount of use of policing tools, that 97% of the time
you're using your presence and communication and about 3% of the time you're using any tactics,
techniques or weapons, and that the training that is provided to police officers is backwards. We
need to give officers more interpersonal skills and techniques on the front end. Police officers
see problems first in our society, so why wouldn't we give police officers mediation skills to
diffuse tension on the front end? The history of racial tension and policing relations in the 1965
and 1992 Los Angeles riots points to a need for proactive tools to address community disputes.
When people of color feel unheard , uncared for, and helpless violence becomes a viable
alternative. We also say that having mediation skills is really for police safety, because every
time you go to a situation, and they're used to problem solving, they tell disputants what to do,
they say, "Look, you go away for a few hours and cool off and you stay here and don't bother him
any more. Don't get into any more trouble, that's it. Got it?" And everybody goes, but when
they get back together, a police officer will more than likely have to return. They didn't solve
anything and the cause of the conflict is still there. What I'm saying is,
"Every time you have to return to a repeated conflict, you're allowing the problem to escalate.
Somebody's going to get hurt or somebody's going to get killed and sometimes police are going
to walk in the middle of it, and they're going to be the target." And that's true,
particularly in long term emotional disputes that have been allowed to fester. Another thing we
have found is that -- I've done a lot of police training lately in mediation -- we find two patterns.
One is that police are often trained to take control and to tell people what to do, and after they tell
people what to do, they just want to leave. Where we think we need to focus for police officers
is you've got to give some of the power to the parties to learn to come up with solutions, because
that's the empowerment. If disputants can come up with options to their problems, they have
choices and they make decisions, and if you make decisions, you have power to overcome
obstacles. You are not helpless. Then police need to learn how to get a good closure. You need
to have some way to say, "Look, do you agree to this, do you agree to that? If you can both live
up to your word then we could avoid this dispute in the future. Can you do that ? At the same
time the officer has taught the disputants how to solve problems. Do you think you can do this
by yourself next time?"
Question:
Are police departments buying in to what you are describing?
Answer:
Yes and no. Well, of the ones that I've done, I've got one police department that says "We
want you to train three times next year. We want you to get all of our police officers as soon as
they come out of the academy." You can tell, they see the value of mediation right away. They
recognize how powerful it is, what it can do for their police officers, particularly on the front end.
The old guys that I was training were saying, "This is great training, but I've been in the field so
long, now I've learned to do these things. I use a lot of these techniques. Who doesn't have these
skills and who doesn't have the experience are our new officers and we need to get them trained
on mediation earlier in their careers." So, I think, to me that says that they recognize the value of
it and then something needs to be done. I've been asked to train eight times for the California
State School Resource Officer Association. They see the value of it, they recognize that it's a
valuable tool, and they're anxious to join us as partners of trainer-trainer, because we will
eventually do a trainer-trainer program. I've done other police departments. Some are just
looking for the post-training, the post credits (the accreditation) and some are looking for a
certification, which we're not planning to give. That's going to be left to the States. That's an
interesting problem, dilemma that we have, but when I've talked to people about certification for
mediators, you know the states have been fighting over who should certify and everybody wants
to be the power broker. Some people said that it would be great to have federal certification to
just solve all the problems, but now I think there's some reluctance to get us in a position where
we were certifying it from the federal level involved. So, we probably won't get into that at
all.)We're getting excellent evaluations from the police trainings. It's full of role plays. It's a real
tight package. It's 16 hours on the basics and a practicum and then an advanced where we pick
up all of the nuances of the experience and where they're going.
Question:
Some cultures have indigenous types of mediation. I wonder if
you ever use any elements of those traditional types of mediation?
Answer:
I'm familiar with what probably is the most overt type of mediation that's more indigenous
to any group. I've trained under a guy from Hawaii. He was an amazing guy but he uses a lot of
shuttle diplomacy because of the Asian hesitancies to participate in face-to-face conflict. But I
don't want to compromise that. In those cases, you do a lot of private meetings before you bring
them together and you even move the agenda, but at some point you've got to come together. I
feel strongly that you have to do that to reach where you can come together. That's probably the
only one. All the mediations that I've been involved in are so multi-ethnic, so western
predominantly. I haven't been into any international things where I would feel required cultural
variance . Even though we may work with some first generation, like Vietnamese mediation, we
usually work with the one-and-a-half generation because of the language barrier. Unfortunately,
too often when we work with some of the different ethnic, indigenous populations we're really
dealing with a western hybrid because of the language barrier and so they become the brokers for
the traditionalists in the mediation process. So I haven't had to use various techniques other than
being very sensitive to the time factors that Native Americans act out, the reticence of the Native
American at the table. Some of these general guidelines that I'm aware of I think we want to be
sensitive to, we want to move it at a pace that they're comfortable with. I don't recall any thing
more unique than that in the situations I've had. Were you thinking of something particular?
Question:
I remember a mediator some years ago saying in the Asian community where he was
working the parties often wanted the mediators to commit themselves to staying with the case
after the resolution was reached. They felt the mediator had an obligation to the remain attached
to the case.
Answer:
If I was in that case, I would say, "There are time constraints on me, but at the same time
my objective is to empower you and I want to give you the mechanisms and the tools to work
through this and hopefully you won't need me but I certainly would have no problems
communicating with you and assisting you if you needed further assistance." But I have not
experienced that request personally.
Question:
Have there been occasions where you've helped parties save face
either by becoming a scapegoat yourself or in some other way?
Answer:
Well, I think we are always saving face out there. The whole process is a face saving
process in a sense because we're allowing people to speak and empower themselves, to get their
points across and not to be dismissed. I think that's face saving in its own right. I will take the
heat for something. I've admitted that I may have misunderstood or that maybe, "I pulled you
together too soon." I have to accept that the timing, the organizing, the convening, the statements
that I make or even, the way I said could be offensive. I'm sure I've gotten into situations where
I've embarrassed somebody. I remember we had a Head Start mediation and there was just too
much heat going on in this session. I think I attempted to move it with some humor and there
was some objection to my humor. I sensed it and said that maybe that was inappropriate at the
time and I want to apologize for that, but that doesn't dismiss my intentions to help resolve your
problems. If somebody said something that they felt they'd lost their honor in some way, and I
picked up on that person's reticence, I could easily, and I'm trying to think of a situation where
I've done this, I think we would need to be able to graciously say that's okay and we know you
didn't intend to embarrass any one or yeah, I do that myself. I don't
have any problems trying to help somebody get through the process by equalizing the playing
field and maintain.
Question:
What do you do when you see a
conflict within one of the parties?
Answer:
Every once in a while you listen to the same party negotiate and they're talking about
different things and that's a cue that something's wrong over there. Sometimes you see these
expressions like, "What are we talking about?" When I see that kind of disruption within a party,
usually that's time for a caucus. "I'll meet with both sides and make sure everything's okay. I try
and give them about the same time. I might say, "Let me give you an example of what I heard
you say. I didn't know where you guys are coming from. Do you need to pull this together?
Let's look at this issue again and make sure that you're together on what you're asking for and
why you're doing that? Is there a reason? Are we talking about two different issues, Are we
talking about the same issue? I didn't know?" Of course we try to frame it so there's a
spokesperson for each group so we can get them to conduit their information. That's theoretical.
We start off that way saying who's going to be the spokesperson for this group so we get a leader.
Inevitably, participants chime in on the discussion and so once in a while you need to reestablish
the leadership role so that we have a funnel for whose really going to speak on the key points so
that we know who has control over the secondary chime in and then make sure that they
collectively agree on where the party is going. I think again it's a regrouping. The other
technique that I use often is just to summarize. "Let me summarize what I hear you guys are
saying," and pull it together for them in front of the other party so that we all get, and correct me
if I'm wrong.
Question:
How about conflicts before you get to the table, when you see factions within a coalition?
Answer:
We talk all the issues out. I've had situations where I've had groups of the same
organization, all parents, all taking different stances and trying to say, "Wait, wait, wait. Do you
want to negotiate all things? What are your principle issues?" It's pretty much like the
Native-American tribelets because you end up having to get some kind of consensus of what you
are really asking and what is of value to you. If you don't, then you can't go to the table at all
because it's just chaos.
Question:
In formal mediation and in more informal processes, are you
doing a lot of explicit training as you go? Do you teach communication skills, negotiation skills
as you go in a direct kind of way?
Answer:
I would say no. When you get into the mediation you are issue oriented. Certainly we are
reminding them of ground rules and process, but we are only conveying that in terms of their
behavior to the issues. The issues dominate everything that you are bringing forth in the
mediation process. I think you can remind them of the process and the ground rules and that we
need you to convey that information clearly, but I wouldn't say that I would be teaching anything.
It is very impractical, to teach basic skills in mediation.
Question:
How do you create the ground rules and the specific process?
Answer:
When I bring the parties to the table we have already gone
through the ground rules once, usually in the pre-mediation session.
Question:
You present the ground rules?
Answer:
Yes. I try to give them as much of the process as I can so they know what they're coming
into and what to expect. When I've started off if I haven't asked them to make an opening
statement I'll give an opening statement. I'll remind them why we're here, that I've met with each
of the parties and that they've concurred with this. I remind them I've gone over the ground rules
and let them review what they are, so that we can work through this process. I remind them that
we are going to respect each other and that we are going to negotiate in good faith. I tell them
"You need to work towards a meaningful and an honest outcome and that we're not going to
interrupt." They have a right to confidentially and a right to caucus. I give them all the
fundamental options they have. It's a voluntary process and if it's not something you want to do,
you have the right to withdraw. 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. Other
then that I'll say, "Are we ready to start? We have an agenda, do you want to look at the agenda?
Let's start from the top."
Question:
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.
A lot of times I've worked with cases where I actually write
what's been agreed upon up to a point rather then wait to the very end. I give them notes to give
them a feeling of building. So, when we convene in the second session I'll say, "Here is what
we've agreed upon so far. I want you to look at it. We start with Item 5, then we know what
we've invested in. Take a look at it and review it." They'll give me a few corrections or
whatever. They'll have that and they'll take it home and muddle over it.
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.
Question:
What do you think are the most effective techniques for
encouraging one party to see the other party's perspective?
Answer:
Well, I learned this from Jan Sunoo of FCMS. I like the one where you say, "Okay, before
we actually go towards a solution to this issue, why don't you state what the other party's position
is." Then the other party is asked to state the opposite parties position." So, you really force the
summary of how the parties captured everything that had been said in regards to that issue before
we go to closure and resolution on it. That's a good technique because it really puts them in the
position to say, "Well this is exactly where I thought you were coming from," and visa versa.
That's one good technique that is very useful in mediation. I use a lot of summary to pull out the
common understanding and ask for reflection and discussion and clarification. That's a way to
make sure we are on the same page and discussing the same issues and that we understand it in
the same way. I do a lot of writing on easels to point out what points
we've made up to now and does everybody understand that. Ask a lot of questions: Are there any
differences in opinion? Is there anything more that needs to be said about this or are we ready to
go to resolution? So, that works. A lot of it comes naturally through dialogue and the discussion
by the parties. You know it happened and that they fully understand by their counters or by their
stated thoughts: "I didn't see it that way, this is what happened to me," or "I didn't know you
thought that way!" A lot of times you hear it in the dialogue itself and you don't need to do
anymore. So, it's a combination of all those things.
Question:
Have there been changes in civil rights conflicts or the civil
rights movement that have affected your work, or the way you do things?
Answer:
The civil rights movement is very dynamic and it's very political. It changes all the time
with every administration in terms of how we get impacted. It means different things because if
I'm working a school case and I'm talking to the Office of Civil Rights at the Department of
Education, and they'll say, "You ought to get a mediation agreement because we're not going to
be able to make a finding." There are a lot of dynamics where politically officers are constrained
for what they can do. It affects all the leverage that we have in our mediation cases.
If you think about it, I've been very frustrated lately with our civil
rights leverage and our due process in the sense that when you look at the state and you look at
the federal government and you are hard pressed to find sanctions for schools that may be
discriminating. There is very little muscle in these agencies to really say to a school district that
you are not protecting the civil rights of your students. That all affects what we can do. We're
trying to get mediation agreement, but some school districts have this attitude that "there is
nobody to make me do that." That has a direct impact. I'm trying to work with the Office of
Civil Rights, the State Department of School Safety with the State Attorney General's office to
look at where we draw the line? Is there any muscle? The state can take over a school. It can
take a school in trust over academic failure or mismanagement. But, can it take a school over for
civil rights violations? I think that's a form of mismanagement. I think we need to broaden that
term and send a message to the school systems that there is a level that is not permitted. The
only muscle that is out there in civil rights now is a court suits. They file for millions of dollars,
and yet, I'm told, the attitude of some school leaders is that it's not my money. We'll just pay
them. They are only conveyers of public money. That all reflects on the civil rights attitudes and
enforcement mechanisms that impinge upon the leverage that mediation can get parties to
seriously take the mediation process and discrimination and civil rights issues.
Housing is a whole other area. At times we had strong support in the area of
discrimination in housing. Now we have the problem where we have the Department of Housing
and Urban Development putting people into situations in housing areas where they're not safe.
We're mixing people into dangerous communities because of their race or ethnicity. We're not
doing any preparation to recognize that we're creating very violent situations. Again, I think
those are some of the civil rights issues that aren't even being understood or looked at and we are
involved in.
Question:
When you are coming down the home stretch in a mediation
case, do you make it a point to build in an enforcement mechanism of some type? A contingency
plan in case the agreement breaks down?
Answer:
Sometimes. I usually try to put in a mechanism somewhere. In
our cases, when we get an agreement there is a commitment to do training and follow-up. Most
of the training that I do is associated with the outcome of a mediation or a remedy to a conflict.
That's the reason why I'm doing so much mediation training, Student Problem Identifying and
Resolving Issues Together (SPIRIT) training, and consumer relations training -- I did a lot with
the Korean swap meets -- good business practices training, anything that is a follow-up to the
mediation that gives it more sustaining strength. In most of my mediations I try to aim
at what will we end up with that really gives them a long term vehicle, skill or capability to avoid
this problem again. Very rarely, in some cases I'll say, "If this arises again call me. I'm certainly
available to assist you more." I don't know if I write it into the agreements.
Question:
What are your measures of success after an intervention?
Answer:
Referrals. I get resource officers who call me and say, "You were referred to me by so and
so, you did a case over here." I get calls from some of the advocacy organizations saying, "I
understand you helped this group. Could you possibly come over here?" So, constantly I get that
kind of recognition. A lot of my case work comes from other people calling me back because
we've had previous contact with a mediation case. Once you get in these circles, for example,
Head Start cases come to me, BIA cases come to me, school cases just fly all over the place. To
me we're doing something right or we wouldn't be referred. That's a key measure of success in
my mind. I get a great deal of satisfaction coming out of certain cases where you just know the
parties are very cordial. I've had people say, "We want to take a picture, we want to document
this agreement." I've had people come to me and say, "This is the first time we've ever had
anything written that we can hold onto that's really spoken to this issue that has been going on for
years." That was an ethnic studies department that thought it was being threatened to be
abolished. We negotiated a whole series of steps as to what the institution should do to give
sustained support to an ethnic studies program and to review it periodically to ensure the
institution did what it could to sustain the department rather then feel that it's being demised.
LULAC was the party and they just said, "We've never had anything written down that we could
monitor our work with the institution." People in CRS get this type of feed back all the time. In
those cases where they go, "Oh, I didn't realize that?" You get the satisfaction in the process as
the lights go on as they say, "Oh, I didn't know that?" "Oh, I like that idea. We should have done
this a long time ago. Why didn't we do this before?" You get positive feedback in the dialogue
in the process too. There are a number of ways. Also, policy changes, which you see
periodically, where they'll say they are going to change a policy on something and you know
you've institutionalized something. That's a sense of satisfaction.
Question:
What are the most important skills or attributes of an effective
civil rights or race relations mediator?
Answer:
Listening skills are fundamental, sensitivity to diversity is
critical, and just having a good understanding of the basic premises of the civil rights movement
and what it may have meant to disenfranchised people. If you don't have a sense of
empathy, I don't think you can really work and get accepted. I think that might be a critical part
of the trust. They want to know that you really and sincerely understand those movements, what
they meant, and where they're coming from in some way. And trust of course. If you can't build
trust you can't go anywhere in mediation.
Question:
How about in your case? What do you think you bring to it?
Answer:
Me personally? I guess I value my ability to listen and my
sincerity. I used to be a teacher and I've have often said and what I hear all the time is, "They
don't care." You don't even have to do a good job; you just have to be sincere and trying to do
the best you can. If you bring that and they feel and see that they'll go with you. I think I bring
that sincerity. I pride myself on being a good listener. I pride myself on being able to
convey my thoughts to others -- I think there is a level of being able to articulate a fair and honest
picture of what you're seeing and hearing. I guess that's what I bring. It's very common sense.
There is nothing magical about this. Maybe a good way to sum up all these thoughts is "good
people skills."
Question:
You outlined some points before we started this interview. Is there anything on your list
we might have overlooked?
Answer:
Well, I numbered them according to your questions, so let me check the context on it.
"How would you deal with a party's agenda that other parties said was
non-negotiable?"We talked about that somewhat. I said that I try to remove that in pre-mediation
and often ask the parties to justify what is their resistance to addressing them and why are they so
adamant in their position. I might try to see if the other party agrees to pass on the issue.
Sometimes they're adamant, like the case I described earlier where the Native Americans said
that it was a sacred mound and the other party said, "That's why we're building here." Sometimes
you have to get permission to pass on the issue and not make it a barrier towards the rest of the
mediation. If it's a key issue, then we are in an impasse. Somebody's got to give in somewhere.
"How do you deal with seemingly intractable demands on a
party's agenda for negotiations?"Reflect on the big picture. By that I meant let's look at the
context that issue is being laid and what does it really mean towards an outcome and a
non-outcome. I drive that. "Is it valuable for you to maintain the relationship? Is it valuable for
you to come out here and have a resolution? Are you going to have this issue intractable and
have it be a barrier to what you want to accomplish?" I draw that big picture, do a reality check
on that issue. "Why are you holding that issue so intractably? What's behind it and is it
realistic?" Another topic on your list, "Attempts to retain
self impartiality." By putting the emphasis on the process and not the persons, you instill a level
of impartiality. Point out the need to address the issues, point out the benefits and the minimal
risk. I think one great thing that mediation has, when you're
selling it is, you don't have to give up anything. There is very little risk. "You can maintain your
lawsuits. You can maintain your EEO complaint. You have all these options and you have the
right to use them, but we're going to give you another option that you can control and there is
very little risk. If you don't like it you can walk away." Point out other options available to the
parties while still involved in the mediation. "What will happen if nothing is done?" That's
always a good way to pose it. One thing we use against institutions all the time is, "If you don't
come to the table, what is going to happen? What is the complainant going to do next? You're
forcing the ante to go up when you're not willing to respond and at least make yourself available
to discuss these issues. So, when they get frustrated where do they go next? They either start
marching or they go to the media and it just escalates. So, why wouldn't you go to the table and
at least hear them out?" Give examples of similar resolutions and after you've mediated long
enough you can say, "I've had a similar case to this and these are the kinds of things that people
came up with." That takes the fear factor out. "You aren't selling the ship or anything, you're just
saying we could all move along and people have already come to the conclusion that we've
moved the ship in different ways and different times. This isn't the first time this issue came up.
Let's go through and look at the history and share some of the more valuable things that have
occurred in mediation cases that I've been involved in." So, I think that's helped. The mediator
and his or her impartiality should not become an issue. 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.
Question:
Anything else you want to add?
Answer:
Well, I'll just give you the types of cases I've had and you might
have a question about one of these. Native-American and governance disputes, police and
Native-American shootings, police and African-American shootings, Asian-, Latin- and
African-American shootings, corporate and repatriation, corporate and Asian customer
protection, Asian and African business customer community dispute, school
suspension/expulsion, racial slurs/jokes, police and school hiring promotions, ethnic studies
threatened, affirmative action demonstrations, marches, sit-ins, hunger strikes, site-based
management disputes between parents and school personnel, gang violence and police response,
recruitment of minorities, discrimination in fire departments, Head Start closures and
community, city governance and community, Latin community in FEMA, students after riots,
shootings and retaliations. I think the principles used in each of these cases were the same. And
the key is to thoroughly understand the mediation process.
