Kenith Bergeron Part 1 of 3

Kenith Bergeron was a Conciliator and then Senior Conciliation Specialist in CRS Region 5 from 1999 to 2020.

There are 3 parts of this interview and a summary: Part 1, Part 2, Part 3, and The Summary. This is Part 1.

 

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Bill Froehlich (00:00:02): Well, Kenith Bergeron, thank you so much for sitting down with me. Today is June 14th, 2022. And you're here with me to engage in the Civil Rights Mediation Oral History Project revisited. This is the first conversation that I'm having with Ken Bergeron and we may have subsequent conversations. So we're going to cover a lot of background details about his career at the Community Relations Service. Probably dig into a couple of representative mediation cases, or reconciliation cases, or two. So Mr. Bergeron, are you comfortable if I call you Ken?

Ken Bergeron (00:00:41): That's fine. And thank you Bill.

Bill Froehlich (00:00:44): Oh, sure. No problem. It's such a pleasure to be here with you. And do you mind spelling your name for us just for the record so we have it right?

Ken Bergeron (00:00:51): Absolutely. First name is Kenneth: K E N I T H. Middle initial R. Last name is Bergeron: B E R G E R O N.

Bill Froehlich (00:01:03): Well, great. I sent Ken some of the questions in advance and I have a more detailed list that I'll be working through today. But we're just going to start Ken, if you could tell us a little bit about your background and career trajectory prior to working at CRS. That'd be a great place to get going.

Ken Bergeron (00:01:22): Absolutely. And thank you Bill, I'm glad to be participating in the Ohio State University Oral History Project for CRS. And if you see Grande, please give him my regards as well. Proud to be a part of this. Proud to have worked for CRS. An answer to your question: my career trajectory prior to CRS were almost 15 years, 20 years, almost 20 years, well 15 years or so, of management in either civil rights or diversity in various occupations. That included HR management, EEO affirmative action, being an equal rights officer for FEMA, diversity manager for Sears, affirmative action work for Morris Diesel, Boston Gardens, actually the United Center in Chicago, and then coming to CRS. So my background was pretty much well tailored to moving into the civil rights arena, having had some experience in conciliation, and conflict resolution, and ADR, prior to coming.

Bill Froehlich (00:02:59): Can you tell us a little bit more about that ADR and conflict resolution experience prior to coming?

Ken Bergeron (00:03:04): Oh. Gosh. <Laughs>

Bill Froehlich (00:03:06): Most, if you were at the United Center in the nineties, particularly, did you mediate with Michael Jordan and his teammates? That's what I really love to know.

Ken Bergeron (00:03:16): No, no, no. We were building the stadium, so we were dealing with minority and women business contracts. But in each iteration of the work in some form or another there's conflict. In my HR work there were labor relations grievances, or there were contract negotiations, which got me started for the city's affirmative action program. There were issues dealing with agencies that didn't, or didn't want to, comply or had issues with it. For FEMA, as a lead equal rights officer, you under the Stafford Act are required internally and externally facing to address administration of federal funds in an unfettered and a nondiscriminatory way. And of course, state and local governments want to apply funds to those jurisdictions that are more politically aligned. And sometimes that's conflict. And then internally there's employee issues where ADR comes into play either between conflicts between employees, one on one, or between the employee and their supervisors. So the ADR was pretty extensive for the FEMA work. And for the, you know, other occupations and diversity and so forth, there was always some. You always have to come prepared to try and, come prepared to uphold law for the most part. But at the same time, let people know the advantages of adhering to diversity measures, or to be compliant with EEO regulations, or and so forth. So bits and pieces of conflict resolution just kind of existed from the time I got started. Yeah.

Bill Froehlich (00:05:33): Thank you. So tell me, you have this rich experience doing ADR, EEO diversity work. How did you come, and why did you become, involved in CRS?

Ken Bergeron (00:05:47): Well, Bill back in some, I sound eons ago, but when I was working with FEMA as a lead equal rights officer, I was paired to work in my role as an ERO, or equal rights officer, to work with a member of CRS who worked out of region two and was covering Hurricane Marilyn at the time. That was 1995. We were working between Puerto Rico, St. Croix, and St. Thomas on Stafford Act and diversity and civil rights issues. And one thing that intrigued me about him is that he was so bent on mediating issues between people who were disaster survivors and the VI Government, in particular in some cases they involved the US Attorney. In one instance, we were working a case in St. Croix that involved what the VI Government considered to be squatters. And those squatters were people from Puerto Rico who had been living in VI for over, for generations, for decades, for over 70 years. And either they were from PR or Puerto Rico, or they were from the Dominican Republic. But in this case, the VI government wanted to confiscate their land and use the land that they had grown up on for years as a dumping site for hurricane debris. And this CRS conciliator out of region two stepped in. And in various ways he either did conflict resolution on site, or he actually brought the parties to the table on their issues to try to mediate on behalf of those communities, and the VI government, and including the US Attorney. In some cases he prevailed, in some instances he did not. But I thought it was masterful in terms of what he was able to accomplish in bringing people to the table, including the US Attorney out of region two. Just to sit down and listen and the leaders of the VI government, so that they could fully understand the need to uphold federal provisions relative to the Stafford Act in terms of related to disaster relief. So I thought that was amazing. We even prevented a forceable eviction where armed VI officials were going to use weapons to get people out of their homes in order to displace them for hurricane debris. And this conciliator, including myself, talked the guys down so that and bought some time for people so that they were able to stay in their homes and get some time to relocate. So that was my first immersion. And it was something that I'll never forget. And it just kind of branded me to want to try to become a CRSer.

Bill Froehlich (00:09:31): Wow. So you had this experience in the mid nineties before you went to CRS, a handful of years before you went to CRS, where your agency essentially loaned you out to support hurricane victims and you were paired with CRS? Is that what I'm hearing, or?

Ken Bergeron (00:09:46): Yes, absolutely. Absolutely. I was impressed. And to see how the work and the report writing that he did went up the food chain so that everyone in the US was aware of what was going on. So I followed his model to some extent in terms of doing my assessment work throughout my career at CRS.

Bill Froehlich (00:10:16): Great. We're going to dig into that in a little bit. So that experience resonated with you. And so can you tell us about when you went to CRS, what your role was, and how you got to that role at CRS?

Ken Bergeron (00:10:32): Yeah, I started December 19th, 1999, at CRS in region five. The regional director then was Jesse Taylor and I was assigned to cover Wisconsin, Illinois, and Minnesota. And those were my three states. Although we had two other conciliators who we shared cases in Illinois. But I started back then in 1999 and got my first mediation agreement somewhere about the next year after I started in Grand Rapids, Michigan. So.

Bill Froehlich (00:11:23): Okay. So you started in 1999 as a conciliator working under the direction of Jesse Taylor who's then the regional director. I wonder, can you just tell me about how long you served at CRS? So you started in '99. Did you serve in the role as a conciliator until you departed CRS, or did you play other roles in...?

Ken Bergeron (00:11:46): I started as a conciliator, entry level, and got, found other promotions or step increases or promotions in the work as a result of some of the work that I was able to, or the achievements that I made early on. I, you know, I know we were giving out awards, but I was able to do mediation. Jesse Taylor was a great mentor. He would coach you on entry and suggest to you how, you know, you would meet with parties and what you should ask and how you should approach and things you should offer and how do you get everyone at the table and how do you maintain balance and be ethical throughout your work? So, I accepted his mentorship as tutelage and as time went on it helped me to advance in my career at CRS. So, I became senior conciliation specialist. A lot in part because of the mediations that I was able to accomplish. I think I'd gotten two awards as being mediator of the year. And I think those things helped a lot. But I think mediation was really my strong suit at CRS. So I worked from December 19th, 1999 until December 31st 2020.

Bill Froehlich (00:13:31): Okay. Well recently departed from CRS. Recently retired, I guess a year and a half ago. So congratulations. So I'd like for you to talk me through one of those interesting cases. If you can be specific that would be great. If you need to be more abstract that's fine. I'd love for you to tell us about something that was challenging to give us a sense of the context, and what happened, what you did, and what resulted. Love to hear about it.

Ken Bergeron (00:14:01): Before I left CRS I had 33 mediation agreements that were either signed, or I think we had about four that were unsigned, but the majority of them were signed agreements. And they were all challenging Bill in some form or another, some with various degrees. I think the ones that I seemed to gravitate towards mostly were those mediation agreements that followed some altercations with law enforcement and communities of color. And what I often found in those instances was a common thread where police officials and/or government officials were never in a, there was a lack of communication in the community between law enforcement or government officials and community leaders. I mean, they might have met, you know, two or three times a year, but they never really talked about law enforcement or had a relationship. So, if a shooting occurred with law enforcement or a person of color, like George Floyd for example, it was the idea that you would bring the police department, the community leaders, civil rights organizations like the NAACP or black lives matter, or Latino organizations, or Native American organizations to the table, so that everyone who was vested had a voice over the issues and how they wanted to improve police community relations. The case that I found particularly, or the cases that I found most intriguing were the ones that I did with Native American communities. And the reason is, is because they didn't ... I got a number of mediation agreements in black communities, Latino communities, informed police advisory commissions. I was able to establish human relations commissions through mediation. The Native American communities were uniquely different in that they were almost always victimized. I, on an annual basis, did outreach to Native American communities to establish a CRS presence or to let them know that we were there. And so in Wisconsin, for example, and Minnesota, I made sure that I had contact with all of the tribes, either attending their annual conferences or any of the events that they had, so that they knew who they, who we were. And as a result we had, I had a few mediation agreements with several tribal nations. Some had to do with law enforcement of 286 law enforcement cooperative agreements where the tribe and the police department share a relationship over their travel boundaries. I have a tribe in Minnesota that had 80,000 acres. There were other tribes who had law enforcement agreements because of huge land that went through the reservation. And then they had to share law enforcement protocols with county officials and sheriffs and so forth. So they had to be, you know, the tribal nations had to have their law enforcement unless they retroceded and became you know, a prior of the federal, allowed federal law enforcement to take precedent over the reservation. There are several cases where, two in particular that resonated with me. And one I'm going to talk about this morning with you. I had a case in, up near Lake Superior in Wisconsin and it involved a Chippewa Nation and a school district. And I had done prior work with another Potawatomi Nation who was very successful in gaming. I'm not going to mention their names, but it was almost a similar issue. But in this case, we had a Chippewa Nation who was experiencing growth, not just because of the casino, but because of, you know, their history of land. But whether it wasn't just the county officials but the school district officials never really gave them, it wasn't just respect, but it was, there had been a history of discriminatory treatment. I had no ... you know, as a third-party neutral, when you come into a situation where they ask you for your assistance, you listen. You do a lot of listening on both sides. And what I discovered in this instance was a lot of systemic racism that occurred on multiple levels. It wasn't just in law enforcement in this case, but it was also deeply in education. And if you went back generations in terms of looking at how communities would look at the Chippewa Nation in this particular area, they functioned out of a lens of marginalization. The tribal people being less than those who were Caucasian. And the issues that brought us to the table had to do with education. And particularly the fact that the school district in this particular, in this community, wanted to have sway over how the native students would be treated, educated, and how their resources and funds would be used, regardless of what their culture was. But it was based on a standard that they wanted to maintain across the school district for everyone, regardless of cultural differences. So we were called in to bring the school district and the Chippewa nation into dialogue. And it was hard to try to convince the school district to sit down and work with the Chippewa because they felt as if the Chippewa had to be more conciliatory. They had to be more, they had to be more agreeable to what the district wanted. In other words, we have more power than you. I'm the school superintendent. You're just a tribal nation. You've got a casino, but you don't run everything. You know, I'm an elected official. You don't, you're not. So the importance of mediator is to level the playing field. And you do that by bringing parties to the table, and trying to set ground rules, and to identify some of the issues that they have between them. So the MOU, or the framework, was to develop cooperative communication and build consensus of course, so that they were to able to improve agreements, programs, relations. But the parties themselves had to have some interest in this on both sides. So I tried to let them know that there was something, as we got to the table, that was going to be an advantage for everyone. And it was worth their while to sit down. So we met over six months, almost once every month from June 2011 through January of 2012, in spite of weather and so forth. It resulted after six months of negotiations in a 25 point agreement in nine categories. And what I liked about this mediation, what was challenging about it is that in some instances, well in all instances, I would suggest that most mediators really need to know more than the parties. Sometimes you have to lead the parties in information. You have to do your research and your homework. So that the parties when they come to the table, you can always say well, what about this? Have you thought about that? Are you leaving something out? I understand that there was some research, or there was some funding over here, or these are some other things that other people did. Have you considered this? How about if I offer to send you the information that this tribal government used or this school district used. And so that ... there was a lot of back and forth about that. And so what resulted were they hadn't met. There was a history between these, the school district and the tribe of not meeting. So I got them to agree to have regular education meetings between the administrators, the principals, everyone who's involved in education on both sides. And they were going to do that several times, or quarterly throughout the year. They were going to have bi-annual school board meetings. They were going to establish a title seven parent advisory committee. The big issue was impact aid. Now, impact aid comes out of the Department of Education for tribal governments based on the number of enrolled members or children in the school district. So the amount of impact aid is determined by the demographics of the tribe and the money. Oh gosh. My camera went bad.

Bill Froehlich (00:25:41): It's okay. What. Let's just pause the recording for a second. Ken, thanks. Sorry for that pause. I know we had some technical difficulties. But, and now you, we're just hearing your audio, which is perfectly fine. And you were talking about impact aid from the federal government.

Ken Bergeron (00:25:59): Yeah. So the Department of Education provides impact aid. The money is sent to the school district. The tribe generally does not have a scale of the money that is going to be, how it's going to be allocated. And so this Chippewa nation were pretty incensed over the idea that, you know, you get all the impact aid money but you don't use the impact aid money for tribal education or to benefit native students. You use it to help you and your budget and you use it to improve school facilities. And that, you know, that's not us.That's not benefiting our students. And so they wanted to ... we came out and got an agreement that there would be an annual impact aid hearing and that the funds were to be, that they were going to identify where the funds were going to be spent in the previous fiscal year and decide in writing on how the children would be benefited from these funds. So I think that was great for ... that was, that stopped a lot of the tension. And the, it increased the trust between them. And then there was a joint collaboration on pursuing grants and funding opportunities that they agreed to. Another big piece was through this the school district agreed to explore Native American history. Now in the state of Wisconsin in 1989, they passed the Wisconsin Act 31 requirement, which said that school districts had to provide annual instruction where native communities resided and the State Department of Education or public instruction required them to. So Bayfield had not necessarily implemented Act 31. And so there was a needs assessment that they agreed to. And then the big piece in this was bringing the Ojibwa culture and spiritual education training to the school district staff. So they had to first understand what the culture was about and then had to turn that over so that they could work together to determine how Act 31 training was to be needed out in various grade levels throughout the school year. Another factor was the recruitment of native teachers, and those teachers were typically for the school district. They were mostly white. The school district had no native teachers. And so the Chippewa tribe wanted to serve as a recruitment source and an interviewer source for the people that Bayfield would use and to help them attract Native American teachers to the school district. Another sensitive issue was the, in the agreement was the school district was going to make an effort to reduce disproportionate numbers of, or a high number of Native American students in special ed. So if you were not seeming to perform in a regular school environment because you're a native student, they would throw you in special ed because they thought you had learning or developmental issues. And Native American students are visual learners and not necessarily students who tend to read and/or communicate very well in writing. I'm not going to say that's true across the board because I would be generalizing. But there was a concentration of students in special ed in the school district. And so they wanted to make sure that that stopped and that they, on a case by case basis, that they would make a determination as to how that would work. Homeschool coordinators were going to another provision, was homeschool coordinators would work with students in terms of improving academic performance. And the school district insisted on this piece because they felt as if the students were working with some homework source that learning would improve. We got school guidance counselors, early intervention. We got tutoring on the table through the mediation agreement. And so these pieces were, I guess I'm citing this agreement because inside of it, if you look at systemic racism that played out in this Lake Superior community, these pieces that were addressed in this MOU addressed what we're talking about today and in terms of the kinds of things you need to address to undo systemic racism in a community. So this was 2012. And so that, you know, was what was so meaningful behind this.

Bill Froehlich (00:31:29): Yeah, I, it sounds like a really thorough agreement with a number of plans and points to get at the root of the problem in the school district. And so it's just incredible. 25 points, 9 categories. That sounds thought ... and the way you've described it sounds thoughtful. I wanna ask you a couple of follow up questions about what you said, and then I have some more specific questions about entry and how you prepared, et cetera. But you used a phrase that really struck me a few minutes ago called, you said, "the indigenous community functioned out of a lens of marginalization." And when you say that, if you could provide more context. Was this lens because the school district had, you described the school district as having power? Or did the indigenous community feel powerless? What is that lens of marginalization that you're referring to?

Ken Bergeron (00:32:29): Well, as you deal with systemic racism, it manifests itself on two fronts. One: those who have power or those who you give power. And then the persons who feel as if they are powerless. And so for the Chippewa community, they had come to a point where they were, they had, they were tired of accepting a position of being marginalized and being victimized. And I think what had helped them so much was the economic enrichment that they got from their gambling casino and the fact that they had become a major employer in the district. So they weren't going to take it anymore. And so they saw that there was a need to balance and improve students who ... if you didn't get cultural awareness taught to the students while they were young and in school, if you didn't get the white community to understand the need to really understand the cultural nature or the Native American culture, then they were going to continue as they had in the past for generations to see the Chippewa as indigenous, backward, and nonfunctional in a white sense. And so, you know, this had a way of balancing that. This gave them an opportunity. The agreement lasted, you know, the terms of the agreement last for five years. But what you often hope is that as you're required to do your meeting on a monthly and quarterly basis -. And, you know, typically most of the agreements that I did had a clause for 5 or 10 years where the parties agreed to meet. What you would hope is that they would be sustainable. You would leave sustainability in a community so that they were able to overcome their differences through regular meetings. And so the agreement was empowering the tribe, but it also created transparency. It allowed the school district to have transparency and give them an opportunity to say to, to apologize. To say, you know, well, you know, I understand how you felt over generations, but you know, this is going to give us a new day. A chance to redeem ourselves, so. And I think that was the beauty of that.

Bill Froehlich (00:35:23): Oh, that's incredible. Yeah. And the ... I appreciate the building the 5 years. Building the time limit in the hopes that look, they can make their own choice and will make their own choice to keep meeting, hopefully, as to keep lines of communication open and the agreement. So I want to step back a little bit about this particular case. You said you're responsible for these various areas. How did you first get involved in this case? What did you do? Did you get a call in Chicago, or wherever you were located in the regional office or another office. Or did your regional director say, hey, need you to head up the road? Did national call you? What ... how did you first get involved?

Ken Bergeron (00:36:12): Well, on two fronts. There was a call that we received from a tribal official requesting assistance. And that brought us to the table. And then the media reports that you would, you know, would pull down off the internet that would add some validation to the fact that there was a problem going on in that school district with the Chippewa. So that's what got me started. I then proceeded to find out who was involved. And you do an assessment meeting. And your assessment meetings, you try to meet with both sides.

Bill Froehlich (00:37:05): Could you take us through that assessment a little bit, that assessment meeting, or meetings, when you went up there? Perhaps, you know, in this specific contract or in the abstract as well?

Ken Bergeron (00:37:17): Sure. The way that Jesse Taylor, my regional director taught me, he says, "well, you know, if you are going to conduct an assessment, and you're a third party neutral, you cannot go into a community and meet with one party and go home and then turn around and go back and meet with another party. Because when they found that you were there meeting with the police department or the school district, then the people who were injured, or the civil rights groups, or people of color, those who were injured, are going to feel as if you are biased. And you're biased towards those people who have all the decision making power. And so you have to find a time to meet with the school district, the police department, the mayor, and then turn around at the same time and go meet with the tribal elders, or the tribal chairperson, or the NAACP, or so forth. So your assessments have to be balanced." And I would venture to say that even if I wasn't working for CRS, that I would pursue the same thing. Because you don't even know parties that are in conflict if they talk to each other. And if they talk to each other, they will say, you know, "the Department of Justice or this mediator called me today, did he call you too?" You know, but you, if you don't know, you've got be even handed. So you got to be very, very careful how you, you know, how you conduct your entry and you do your assessments with parties.

Bill Froehlich (00:39:02): Yeah. That's really important. So how did you decide who to talk to in those groups? And in this, so for in this case, obviously there's a conflict that you've read in the media et cetera between the Chippewa and the school district. How did you ... were there other stakeholders you talked to in this case? How did you decide who to talk to in your assessment?

Ken Bergeron (00:39:25): Well, I discovered early on that the chairman of the Chippewa Nation did not know everything about education. I found out that the school district superintendent didn't know everything about education and how the tribe was being dealt with on a day to day basis. So we had to drill down and say well, how does this get managed on a day to day on, you know, throughout the school year? Who are the people who implement all this stuff, or the lack thereof? And so we started to find out that there was a tribal education coordinator. There was somebody who was a homeschool coordinator on the Chippewa side. There were elders that dealt with cultural awareness. There were people who were part of funding on the tribal side. The school district had a school board. The school board, there were teachers who were involved in special education. And so all of those people had to be brought to the table just to find out what is it that you know, or you don't know. And so when the dialogue starts to occur, and you go segment by segment or issue by issue, then you're able to peel back and find out who's responsible for what, and what are they doing, and what are they not doing. And it gives each side a chance to question each other. And then you have to make sure that as they are questioning each other, that you then have bigger questions for both of them, so that ... because you want to be able to get them to to have sustainability when you leave and say "well, you know, great, you know, if you guys are, you know, if you're conducting the impact aid meetings and ... are you inviting, you know, who are you inviting to the table as the chairman there? Who does the demographic analysis? Where are you getting your numbers? Have you consulted with the tribes? Do you have a pre-meeting? Do you have a, you know, do you, can talk back to the Department of Education, you. And how are you going to address this in the future?" So it, you know, that was a hot button for them. And so even if it's a law enforcement issue of, you know, making local arrest or stop and frisk and those type of things, you still want both sides to ask each other "well, you know, are you doing any education on the community side about how not to get stopped by police? What to do to avoid any altercations with police? Or how police officers should conduct themselves in a very civil way when you deal with people of color who feel as if they are already being discriminated against or in being profiled. So, yeah.

Bill Froehlich (00:42:41): That's really detailed. And I really appreciate that drilling beyond the figureheads to figure out who else needs to be involved and then figuring out those bigger questions. That's really valuable. So in this particular case, you know, going back to the school board, you said it was tough to get the district to the table because they had prep, potentially because they had more power and for other reasons. So what did you do? What did you have to do to get them to move beyond the assessment? To get them into a conversation, these monthly conversations that you were hosting?

Ken Bergeron (00:43:23): In this instance, it had to deal with the personality of the school superintendent. We started meeting in June. He said school is out, I'm on vacation. I won't be back until July. Can I meet with you in July? Well, I'm not sure. I have to talk to the school board first. Let me see what they're going to say. Well, when can I talk to you and find out if what they said? And so it was ... you had a personality that was operating out of authority. In other words, when you have a person who is presenting themself in that way, what they're really saying is I'm important and I want to be respected. And so then you have to give them what they're looking for. And you say "well, you know, Mr. Superintendent, I know that you're busy and I know you're important." And sometimes as I'm sure Grande will probably tell you there's a BATNA and a WATNA.

Bill Froehlich (00:44:35): Sure.

Ken Bergeron (00:44:37): And so with a person in authority, you, you know, you kind of get humble and say well, I know you're great and powerful and so forth, but the, you know, it would be to your advantage to meet with the tribe because they potentially have the opportunity to try and say that you were not willing to cooperate if you don't and either tell the media or tell the State Department of Education or something like that. And I'm sure you don't want that to happen. So, you know, it might be to your advantage to just kind of sit down and talk to them. So I've given him a BATNA and a WATNA and that really was what turned him around and got him to the table. So.

Bill Froehlich (00:45:33): Okay. Yeah. So asking them what the consequences were. Consider what happens if X, Y, and Z and helping them think through their BATNA.

Ken Bergeron (00:45:44): And I think too was just to give them, give him a perception of how the Chippewa Nation felt about how they were treated. And before he got to agree to get to the table. So he knew that he was dealing with. That way I didn't have to ... I didn't give him all the details because some of the power behind the voice of the, of a marginalized community, is letting them tell their own story. And you can't take that away from them. So you tell a little bit of it. But then the chairman is the person in the meeting, the first meeting in particular, who opens the can of worms and says you know, "Superintendent, we've been dealing with this for generations. And I was a little girl and your teachers treated me like this. And you know, my daughter went to school and you all treated her like this." And, well, those are stories I can't tell. But there's so much power behind that. When people tell their own stories.

Bill Froehlich (00:46:58): Yeah. Well put. Well put. So you ... after you have done an initial assessment, how do you decide on your response plan, in this particular case? So, for example, did you talk to your regional director? Did you talk to other colleagues? And how did you decide that we're going to have these monthly meetings? Or how did you decide who's at the table for those monthly meetings?

Ken Bergeron (00:47:29): Well every time you, and I learned this back in 1995 and in the VI government, CRS requires you to do a report every time you do an assessment. So you have to write up a narrative and so forth. And you have to make a case for why this should be mediation. And because mediation is going to require you to use federal funds to travel. And then you're going to have to put a travel request in and hope for hotel stay. Or maybe you have to rent a vehicle. Or if you're going to use a vehicle are you going to incur some cost for fuel or whatever it is? But those things become documented. And so they have to be true. I believe when you write up a issue like this, it has to be done in such a way that CRS administration when they very clearly see it, see the lines of delineation and the issues dividing the communities and the role that CRS potentially has in bringing them into some sort of resolution. So being able to talk to in my narrative about what I see as a resolution for both parties or benefits of both parties is an advantage for CRS. And that, I'm not really wanting to say this word, but that sells the case work.

Bill Froehlich (00:49:14): Got it.

Ken Bergeron (00:49:14): Yeah.

Bill Froehlich (00:49:19): Excuse me. And did you consult with your regional director in writing a report? And you said "hey, look, I think this needs, this is a prime case for mediation." What are you thinking about? Would you ask them for guidance on how to get it towards mediation? Get it approved or set it up for approval? Or would you simply write the report on your own?

Ken Bergeron (00:49:41): So in this case you always have to defer to your regional director. And I did. And got it slated for mediation. And once it was approved for mediation, then we just communicated every two weeks or every, yeah. About every two weeks with the parties and got them into meeting every month. So the two week window as a mediator was to get the parties to determine, to identify the issues in each one of those 25 points. What is it that you want? What's the issue that has to be resolved and, you know, how can we, you know, what's the resolution out of it? So, and you have to take it step by step. So, because it's 25 points, you may be able to accomplish one or two in every meeting. Maybe there are three or four. Maybe there's five that you can get. But you're not going to get all 25 in one meeting. That's why it took six months. There are some mediations that ... and those 31 agreements that I had that took two years. So.

Bill Froehlich (00:51:02): I understand. I was a labor advocate previously and understand the complexity of dozens of issues can be involved. But I appreciate your highlighting that. There's one other, one or two other items I wanna ask you about with respect to this case. You mention preparation. And you said that being prepared you need to know more than the parties almost, with respect to what's happening in the context and resources. So how did you, do you prepare for a case like this? Obviously your assessment helps. And I, my assumption is that you do some preparation before the assessment, and then you do a lot of preparation before every mediation session. You mentioned that you, before you first went out there, you were looking at internet articles, which the conciliators in the last oral history, didn't talk about. <Laugh> Because it was in the nineties and prior. But you're looking at articles online and other things. But what else did you do to prepare a.) to head up to do your assessment and b.) before each mediation session?

Ken Bergeron (00:52:13): Mm, okay. So thank you. I had a previous case with the Potawatomi over a very similar issue in western, central Western. Well, north central Wisconsin.

Bill Froehlich (00:52:35): It was in the Midwest. <Laughs>

Ken Bergeron (00:52:37): Mm-hmm.

Bill Froehlich (00:52:38): Yeah.

Ken Bergeron (00:52:41): But this tribe, when you become 21 years old or 18, you get a million dollars.

Bill Froehlich (00:52:51): Okay.

Ken Bergeron (00:52:51): [inaudible]... What the tribe discovered was that even if you turn 18 and you get entitled to this money, that you are not educated, if you don't have a good education, you don't know how to spend or use the money. The school district is not giving you an adequate education and putting you on a path to college or a vocational education or some sort of business training. And that's a lot of money. So this particular Potawatomi tribe, evidently, I mean, obviously they had a lot of income from their gaming industry. But their problem was with the school district. Pretty much like the Chippewa. So I learned from that case. In addition, I had a relationship with the Wisconsin Department of Education. And with them, I discovered they had annual Act 31 meetings. And they had all this literature on Act 31. And act 31 is Native American history and how it's going to be taught. And then I had experience with the Ho-Chunk Nation on similar education issues. And it, and so one ... law enforcement cases are ... every mediation is different, but all of them within the context of type have similarities. But you have to determine what is some knowledge that is transferable from one case to another. And Act 31 was one. Impact aid was another. And cultural awareness training in education was a third piece. So I knew those could transfer from the Potawatomi case over to this case. And I knew they had application. But all of the other points in the 25 point agreement were specifically related to the differences between the school district and the Chippewa. So they were different. The internet is a great tool because it gives you access to potential funding sources. It gives you access to supplementary, supplemental information that can help you. And it also gives the mediator an opportunity to examine well, to become educated and examine what he can introduce at the table or not. So that helped a lot in these cases in terms of evidentiary information.

Bill Froehlich (00:56:02): Thank you. Evidentiary information. That's just a phrase I want to follow up on. You see it as ... is that a term of art that you used, evidentiary information, or that CRS used in gathering information about, for a particular mediation or conciliation?

Ken Bergeron (00:56:26): I use the term in context of information that's specific to each case and/or information that is, becomes factual that serves as proof or some sort of information that validates the position of either party. So if you have evidence of disproportionality. And you have numbers of the number of students that have grown over the years and the tribe presents those numbers, then it's almost like you're in a court of law. I mean, you, what is it that the school district can counter with the numbers if they, it ... in some cases the school district will say "well, you know, we're not prepared to discuss that. I'll have to go back and look at what our findings are and I'll bring it back to the next meeting before we can make a decision about it." But if you're saying that you've got high instances of disproportionality, and it's based on the numbers that you're presenting, how do they contrast with the disproportionality numbers of white students or African American students in the district? And are you saying that you have a higher proportion of disproportionality just because you're Native American? So yeah, let me go back and prove that. So evidentiary information allows, you know, either it's something that you may not have as a mediator, but it's something that you would encourage the parties to peel back. Law enforcement is going to go and look at their shooting data, or, you know. How many people were fatally shot? Or how many arrests did we make of people of color? Or stops that we make as evidence of biased policing or profiling? And you know, how does that impact a community in terms of trust? So, you know, one party says one thing and the other party says "well, where the numbers?" And so they can either call each other out on factual evidence or you can suggest it. But it gives credence and proof and it legitimizes the positions that the parties have. It also gives the mediation agreement itself more legitimacy in addressing those issues. And it gives you more respect as a third party neutral in being able to make sure that all of the evidence has been presented fairly. Because if you leave something out, they'll say "well, you know, that guy wasn't fair. He didn't consider this point or that point." So, you have to be balanced.

Bill Froehlich (00:59:38): Okay. Thanks for that. Thanks for letting me follow up on that. So I have one more question and then I'm going to ask you to dig into details about what your processes are for table oriented. And then we'll talk, if you, about street oriented, probably won't get to that today, conciliations or mediations. So the last question I want to ask you before we turn to that is, were you ever asked by a party to do something you were unable to do? Or perhaps maybe by an outside party, someone who's not at the mediation table, but a law enforcement official or something along those lines. And how did you deal with that?

Ken Bergeron (01:00:23): Well, the easy part is everybody wants to take you to lunch.

Bill Froehlich (01:00:27): Okay.

Ken Bergeron (01:00:30): After the mediation, "hey, let's go to the restaurant." You know, you just say "no I, ethically I don't think that's a good idea because unless everybody in the mediation goes to lunch together, then you can't go with one party or the other."

Bill Froehlich (01:00:47): Yep.

Ken Bergeron (01:00:48): And I can't go with a person who is just one person just because they want to have lunch because you're going to be perceived as being biased. So that's an easy one. There are other instances where a recent case in, here in Chicago, it wasn't necessarily a mediation perhaps as much as it was ... Laquan McDonald was a young man who was shot 16 times in Chicago and one of the ... we were working with protestors and we did a program in we brought, we did a peacekeeping agreement or just a citywide effort to get schools and law enforcement, in terms of a contingency plan. We did contingency planning. And along the way, I met the people who were on the street who were protesting. The trial went forward after the verdict. They felt that the officer didn't spend enough time. And so one of the people in protest said "well, you know, I need to meet with the US Attorney and I need to talk to him. And I need you to get him on the phone so that we can talk." And so when someone is asking you as a third party to now get a public official, get a government official on the phone, or to try to leverage their issue on an official level, they're using you in your position to help them be, do something that is inappropriate. So you know, in those instances, you have to say "well no, I really can't do that. I can apprise them of your need to want to speak to them. But I can't get him on the phone. I can't make him talk to you. Or I can't get the elected official or the senator to have a dialogue with you." So people will ask you things like that. They'll ask you to sign off on, "can we use you and the Department of Justice as a resource or as a reference for our grant?" "No, as a, I can't do that either." And as a federal official we are prohibited from doing things in that way. We would be called into question in terms of well, why did you sign off on this? And why are you approving it? Or blah, blah, blah. So there are a lot of ethical things that people will ask you or unethical things that people will ask you to do that I found myself facing. Not a lot, but some. Yeah.

Bill Froehlich (01:04:21): There's three examples. The "hey, let's get lunch or coffee." And the, they're essentially asking you to bind a third party by making them talk to you. Or you, and they're asking you the mediator, DOJ, to commit to something that you can't commit to and ethically you can't. Those are parallel to, you know, basic examples for new mediators that I teach here at the college of law. You know, don't accept a gift certificate or, you know, anything more than a thank you and a handshake. Don't commit to exchanging money for the parties. Don't. You can't bind the court to an agreement, right? You can't bind a third party to a mediation agreement.

Ken Bergeron (01:05:06): Right. Or even. And they would. Exactly it. You, Bill, you are dead on point. They would ask, I've had people come back and say "can I take the mediation agreement to court? Will you come in and testify for us if they don't agree?" No, I can't. And there's provisions within our, you know, with Washington that protects us from testifying. We don't do it. So.

Bill Froehlich (01:05:34): Right. Absolutely. Thanks for sharing that. Great. So I want to transition now. And I'll just note the time. It's about 12"15 and so we have about 45 minutes left. And so we may not get through this first component. And that's okay. But there are really four components left to this oral history. I'm going to ask you to talk about your strategies and tactics for table oriented mediation processes. Then we'll talk about street mediation or community oriented mediation processes. And then some general ideas about typical cases. And then kind of some follow up about bureaucracy at CRS and guidance for new mediators. So thank you for sharing that example about the indigenous community in Wisconsin and the school district. I want now talk now about the table oriented mediation processes, generally. You can use examples as freely as you like. Of course, they make the oral history exciting. But you, don't feel the need to. So I want to focus on table oriented mediation processes. Who chose the participants for table oriented mediation process?

Ken Bergeron (01:06:53): Well, you, I try and never, well, I don't believe a mediator should exclude anyone, but because. Give you an example. You will talk to a police department and the police department will say "well, we don't want Mr. Chalmers to be a part of this negotiation because he's an agitator. And if he comes to the table we won't be there." Well, then I said "well, you know, I, if Mr. Chalmers is respected in the community and the community wants him there then, you know, all I can do is suggest to you that Mr. Chalmers may very well be part of that, you know, may be part of the process. We could set some ground rules so that we can try to control the process so that there won't be any agitation or grandstanding during the process. We are going to set some ground rules for everybody on both sides." Then there are instances where you've had a shooting and the community wants to invite the mother or the brother of, and the uncle or the father, of the victim to the table. And then what you should be aware of, particularly if you're dealing with a law enforcement issue where you're trying to build trust between the police department and the community, that if you do that, then you're dealing with the emotional sentiment of the victims, and then it's going to be "well, this is how I feel." Sometimes, and, or "this is what we're dealing with." And the problem with that also is that you don't know if there is going to be a criminal action brought that has not been resolved. And if you have the family at that table then is it going to discredit the mediation process? Is there an investigation that's going on that you need to be aware of? And if the investigation is not completed, if information is being discussed in your mediation, how is that going to be impacted? And then if there is a civil lawsuit involved, then one party might want to say "well, during the mediation, these things were said, and those things were said, and the city agreed to this. And that's proof that you all did this, this, and this." So you know, you have to be very careful about whether or not you have legitimate parties at the process, at the table. And if they should, in fact, be there. Sometimes you have to exclude them and encourage the parties that they, the reasons that they have to be excluded. And I think if you explain to parties as to why the legality, as to the legal reasons, why certain people need to be excluded, they pretty much understand it. If you pick and choose who's going to be at the table, it's going to be your mediation as a mediator. If you allow the parties to suggest to you who's going to be at the table, then they're building their own mediation. And if you don't have enough people on either side, then you're going to have to build, you're going to have to do some brainstorming on your own and/or with the parties to make sure everybody's at the table. I noticed that early on Jesse Taylor would tell me "well, you know, if you don't get the mayor at the table, he's not willing to come, get the chamber of commerce. If you don't get the police chief who's at the table, then go to the county sheriff or go to other law enforcement people." And you'll find that because there is an interplay of power in a community, one person doesn't want to be upstaged by the other. And then he'll say "well you, are you aware that the chamber of, president of the chamber of commerce is going to be, your mayor?" "No. What, is he coming?" "Yes, he is. Well, can you be there?" "Yes, I will." And so there's always a way to get certain people at the table who may not in the beginning want to be there. You just have to be inventive and think about you know, who should be there and what... is in their best interest to to convince them to be there, present at the table? So once I have everybody at the table, the thing I always insisted on is that if I have a mediation, then you, there's a trust that the mediator is expected to 1. uphold the protocol for the meeting. The safety of the participants. You can't have any fighting and God knows nowadays God forbid you should have a gun in a mediation session. You may not want media to be at the mediation session unless everybody agrees to it. But typically to try to keep them out of the mediation, because once the media gets in the mediation, then the entire community is in the mediation. I wanted to always have a closed door in the mediation. I wanted the parties to sit either across from each other or with each other. And I wanted to be able to see each other, each person's face. And the reason is, is that being able to facially look at reactions from what one person says to another person, it tells you another story. You know, God, you know, you got a squirm, or a face of disgust, or "I don't believe it" type of expression, or shock, or tears, or you know, all of those things you should be able to see as a mediator, to be able to clearly see the facial expressions of the parties. Even when people are talking behind your back or passing notes. You've gotta be able to see all of those things. So you should be able to set up your mediation in a table format very well. I always, you know, in table mediation, I'm very clear with the parties in terms of what my expectations are. I don't try to say, you know, I'm here and we're going to have a I might start in the fact that we have a dialogue and I capture points of agreement, which could possibly turn into a mediation. But I won't misguide them and say, I'm not here because of mediation. Because you're lying. Tell the truth. What are your expectations? Why do you want a mediation agreement? And the reason I want a mediation agreement is because I want you to have sustainable dialogue. I want you to have dates and times when you're going to meet in the future as I leave here. Otherwise I'm going to be back again and you're going to continue to fight, or ... the next time. So.

Bill Froehlich (01:14:37): So I'm hearing ... you've packed so much in there. And I want to just pause if you don't mind and let me unpack it a little bit. I'm going to get back to goals for bringing parties to the table, which you just started to articulate. But I heard you explain who was at the table and why but I also, you started to get into a little bit about challenges of bringing people to the table. And in the case from Wisconsin, the Indigenous and school district case you referenced, you mentioned the personality challenge. You also mentioned the challenge about occasionally getting a certain player to the table. You found someone else with aligned interests and invited them, and then all of a sudden the person you needed at the table was on board. Were there any other challenges in getting individuals to the table or representatives that you needed at the table? And how did you address them? You've already articulated too so I just, I'm just being exhaustive of your memory here.

Ken Bergeron (01:15:47): Yeah, yeah. I think sometimes, there are times when ... there was a case, a school district in Indiana. Well, there were two school districts. They had ... in the state of Indiana, it's a big basketball state for high school. Girls basketball tournament went off and when the all black teams showed up in a all black, all white district, for the playoffs, the white students had gorilla costumes, used racial slurs at the team, bananas, things like that. What we found out was that the black school district ... we wanted mediation between the school district and the Indiana athletic association and white school district. But the white school district wanted, did not want to come to the table because they were embarrassed to admit that there were certain things that were done that they were wrong about. And while I think early on they apologized for it, they didn't want to sign off on a mediation agreement because a mediation agreement would be an admission of guilt. So you can't get, I mean, everyone in the white school district was a, participated in the first two sessions. But then they backed away at the end and did not want to sign because of what they thought the agreement would do. But we had to capture the pieces that they did agree to and put them into the agreement, even though the black school district, and the athletic association, and then we had the other civil rights groups participate, and all of them signed off on it. So it was not necessarily an indictment, but it was, you know, was an instance where people will walk away and leave you high and dry and you can't come away with a signed agreement. So yeah. There are ... I don't, I didn't really get a lot of instances where people did not want to participate in the process. Most people, once they found out the Department of Justice was doing a mediation over a sensitive issue, they were excited about being there. And the thing that kept people at the table that I realized what, you just can't have one mediation and then go into the next mediation. There has to be an expectation of deliverables. So always try to create subcommittees during the mediation and explore questions on issues and ask people to either produce the evidence, produce the research, and/or the solution to the issue or the problem in that, in a particular section. And that typically would keep them coming back and wedded to the table process.

Bill Froehlich (01:19:48): So tell me a little bit more about your goals for a mediation. It sounds like you wanted to be clear with the parties that your goal was to get them to an agreement, not just to sit sit together and reason, but to get to an agreement. Tell me more about your goals for mediation session.

Ken Bergeron (01:20:07): The goals to, and this happened as time went on, the goals to mediation was ... and as I started in my mediation with CRS, the initial goals were to get parties to agree on points of a consensus. As time went on, I realized that they had to have sustainability and, or capacity to, capacity building mechanism or mechanism that would keep them coming back to the table or keep them in dialogue with each other. So if you agree that yeah, we're going to meet on a quarterly basis. Well, give me a calendar of your meetings. When exactly are you going to meet? How are you going to do the report writing and what is it that you are going to improve on? Or how are you going to use those issues to improve on what you have already started? And are you going to do an annual summary report? So getting people to be productive, to be producers and to be participants in the solution, in the resolutions of their own issues, is the best thing that you can do for a community so you don't have to come back. You have to create relationships to build trust. You know, along the way those, well, we have to go back to a monthly or ... monthly meetings I found out, people got tired of meeting with each other on a monthly basis. They ... quarterly meetings I often suggested because it gave them enough time to breathe, but it also gave them enough time to do their homework and come back as truthful. So I like deliverables. And I like dates and timetables in mediation agreements. And I found that that served me better as I ended my career at CRS.

Bill Froehlich (01:22:13): Did you, did your parties often share these goals of getting to an agreement or getting delivered goals or capacity building? And if not, how did you get them there?

Ken Bergeron (01:22:24): I think some did. Especially, and I think as a mediator ethically, if you begin a mediation, you should always follow up with the parties at some point and say "well, how are you all doing?" You know. "What was the outcome of your first meeting? How did that go? Did you in fact feel as if the parties were well meaning and were they sincere in terms of trying to stick to the process that we agreed to?" And if they come up with "well, you know, they came back but they weren't really interested." Then you call the other side and say "well, how did the meeting go?" As if you didn't talk to the other party. "How do you think that meeting can be improved? How, what do you think will be in your best interest to have relationships improve?" And then you do a slight of hands, shuttle diplomacy between each of them.

Bill Froehlich (01:23:30): So that's really interesting. This is after you get to an agreement when the parties are, when the parties have said "look, we'll meet on this quarterly basis," or something like that. You see it as your duty to follow up and encourage the parties to keep having real conversations.

Ken Bergeron (01:23:46): But, you know Bill, I found out that that was, it was more value, it was more valuable to do that. I learned the importance of that as time went on in my career, because with CRS, you've got issue after issue. If you can imagine what CRS is dealing with now.

Bill Froehlich (01:24:06): I cannot.

Ken Bergeron (01:24:08): And so you've got conciliators that are jumping from one issue to the next, to the next, to the next. And so when do you have time to follow up with the parties? Well, on some point, you've got to sit down on your calendar and say, I've got to double back on. Or before you leave, you say, well by March the 1st or March 31st, or whenever, I'm going to call back, call you guys back and just see how you're doing. Just do a check in. Okay. And you know, sometimes it helps because you were really the person that got this whole thing started in the first place. So you better take some responsibility for what you created.

Bill Froehlich (01:24:50): So I want to go back to the beginning though, when you were at the initial stage of involvement. I think you were saying you tell the parties like, "this is a mediation. It's designed to get to an agreement." Do they share those goals at the beginning?

Ken Bergeron (01:25:07): Not necessarily.

Bill Froehlich (01:25:09): And how do you get them to?

Ken Bergeron (01:25:09): The way to bring them there is through a pre-mediation agreement. And a pre-mediation agreement starts with explaining your role, at least with CRS's role. What is CRS? What is your role as a mediator? What is it that you will do and not do? And what is, how, I mean, how ethical are you going to be with this process? How are you going to be impartial? How are you going to be neutral? How are you not going, you can't advocate for anyone. And then you talk about some of the issues in your pre-mediation. And I'm sorry, I might have left that out. I always had pre-mediations because pre-mediations, and usually the second meeting after the assessment meeting. And then that it should be your meeting before you do your formal mediation where you're bringing people to the table. And some mediations are not going to be formal. But having a pre-mediation agreement gets parties to agree to how the protocols are going, for the mediation, are going to be set. Where they're going to be held. The times for the mediation and what the outcomes are going to be. And sometimes if you can have a signed pre-mediation agreement, they'll sign off on it and you can use it as a document to say ... and CRS has pre-mediation agreements that we've, that I drafted initially and left it in place. So I think they're still using it. I know that they used the mediation agreement model that I developed a long time ago too. But they, you know, they continue to improve. So yeah, pre-mediation agreements are important because they kind of don't lock people in, but they get people to commit in some way on a voluntary basis as terms of how they're going to participate in the dialogues.

Bill Froehlich (01:27:27): Great. I will ... if you have a pre-mediation agreement, I would love it if you could email it to me. I'll try to find it through other means as well. But I appreciate that. I had not heard of, I didn't know there were pre-mediation agreements that conciliators had access to. So that is, that's helpful. Thank you for that. So you talked in that pre-mediation agreement it might have protocols, et cetera. And it sounds like previously you had protocols about safety, about media, about ... you had protocols perhaps that weren't written that you would follow about where folks would sit so you could see their faces, measure their non-verbals, see the way they respond and communicate with one another. Did you have specific ground rules for mediation sessions? How were they decided upon?

Ken Bergeron (01:28:22): Well, typically some basic ones, maybe five or six basic ones, and that you throw out in the first mediation or the pre-mediation. Typically that it is, there won't be any violence or this is going to be a safe environment. Can you agree to that? Can you agree to not interrupt someone who's speaking? And if you do allow someone to speak, can you allow them to speak until their point is made? And if there's a time limitation, would you agree to three or five minutes? Which one? And if you you, you know, those are kind of basics. How about profanity? Is that okay? How about no media? How about an agreement not to speak to the media after the negotiations? How about confidentiality? Would you agree that everything that is discussed in the mediation session will be held confidential until we are finished? And then when we're finished, would you collectively agree if you want to speak to the media who's going to speak and what is going to be said before you say it. And is there anything else that you want to add to these ground rules? And that's typically what I would say. Yeah.

Bill Froehlich (01:30:08): Yeah, no, I appreciate that. So you would, you have some general ones and you might offer a conversation around confidentiality, and media, and profanity, et cetera, or depending on the context might use them. And did folks ever come up with interesting ground rules that you weren't expecting?

Ken Bergeron (01:30:33): I would say, nah, they were pretty standard, you know. They, yeah, they weren't too, too far off. They would hold you accountable though. They would tell on each other. So and so talked to the media. You know?

Bill Froehlich (01:30:51): So that's my next question. How did you enforce them? Or it sounds like they were self-enforcing a bit, but. They had challenges. So what happened?

Ken Bergeron (01:30:58): Right. Yeah. Yeah. You know, Mr. Johnson talked to the media or he said we were over here talking and you know, we agreed that there were not going to be in discussions with the media so, you know, what are you going to do about that? So if Mr. Johnson's at the meeting you say "well, what happened Mr. Johnson?" And you give him an opportunity to explain himself rather than castigate him for, you know. "Just so well, "how did it go Mr. Johnson? What." "Well, all I said was..." "Well, Mr. Johnson, you know, in the future we agreed that we weren't going to talk to any of the media. So do you think going forward that you can make sure that, you know, any statements that are said before you speak to anyone that you would agree not to or you would bring it the attention to everyone before you will do something like that?" And usually you'll get some agreement and most people sided with confidentiality. And then there's a confidentiality clause that is sometimes inside of the mediation agreement. So. Yep.

Bill Froehlich (01:32:08): Yeah. Right. So were there any other specific challenges or did you ever have trouble enforcing any component of the agreement? Of the ground rules?

Ken Bergeron (01:32:17): I had, I was trying to do mediation in, over a, in the south suburbs in Chicago, where there was a sizable Muslim population and the, there was a county official who was anti-Muslim. And I had gotten both parties into the assessment side, and I pretty much got the Muslim community to agree to the mediation. And they were insistent on the fact that nothing will be said in the press about any of this. Well, as I was about to start the first mediation session, I found out that the county president, not the one who was castigating, not the one who was, you know, anti-Muslim, had gone to the media and said "we're going to work with the Department of Justice and we're going to hold a mediation." And the Muslim community thought that that was a breach of confidentiality. And what was said was not what was going be discussed, but the fact that the mediation was going to happen. Well, they didn't want that to be out there at all. Anyway. So I thought that was interesting. But you know, sometimes people don't see things as clearly as you would like them to. Or see that the injury is perhaps not as great. Or the fact that the county president talked to the media and they didn't, didn't give them equal time or an opportunity to even say anything to the media. So, injury is strange. You don't know how people interpret being hurt or being, or something being disingenuous. So you have to be very, very careful. Not only ... and, you know, my, the thing I always used as a mediator is always to, two things: be like water, like Bruce Lee. So that you can, so, you know, the water style, but be like water so you can be malleable. To be used by everybody. But, you know, and then at the same time be small so that other people could come great over it, you know, through your process. And so, you know, you'r a great mediator as long as you're moving the parties, asking open-ended questions and not leading on your own. But once you start to tell people how it's going to go, it becomes your mediation. I never, never really wanted to ever see that happen.

Bill Froehlich (01:35:23): Yeah. A line we all walk as mediators, right. And think about. Seriously. How .. so with respect to an agenda or negotiable issues, right. Did you set the agenda? Did you set it with the parties through your assessment pre-mediation process? Did you set it in the mediation? Did the parties identify those issues? Or did you?

Ken Bergeron (01:35:52): I would generally send an email to the parties before the day of the mediation outlining the issues that we were going to discuss.

Bill Froehlich (01:36:01): And how were those issues populated? Was it based on your assessment conversations?

Ken Bergeron (01:36:06): It was based on the prioritization of issues in terms of what should be done first, either based on importance, either it was something the parties wanted to explore or something that I suggested. So if the most important issue becomes cultural awareness training for law enforcement, or diversity training, or crisis intervention training for law enforcement then, you know, that's the first thing we're going to have on the agenda, and maybe two or three other issues. And, you know, that goes in the email and/or it might go forward in a written handed out agenda at the table.

Bill Froehlich (01:36:53): So you'd send that agenda out in advance. And did you offer the parties to add items to the agenda or?

Ken Bergeron (01:37:07): Yes, absolutely. Absolutely. Give me some feedback, let me know. And you know, Bill, I think the most frustrating thing for me was I want you to participate in the process. If I got a six month, or a year and a half, or two year agenda, I want make sure everybody shows up. So sometimes you have to call the individual people and say, you know, you know, "hey Betty, are you coming to the mediation on Sunday? I mean, on this coming Thursday? You know, we're meeting at three o'clock at blah, blah, blah." And you just, and you go down your list and you call everybody. Or you're sending emails. And so you want everybody to be there. It's almost as if you're holding church. And, you know. But, and you don't want them to miss it. But I think, because if you don't have a quorum, you don't have all the decision makings at the table, you know, you can't really have a successful session. So.

Bill Froehlich (01:38:07): Absolutely. So during the session who facilitated the discussions? I assume it was you, but I just wan to make sure that that's right. Did you ever co-facilitate or collaborate with others when you were meeting?

Ken Bergeron (01:38:21): Typically I mediated most of mine. But I think that as I, as time went on, I noticed that to be able to allow crosstalk to take place where the parties are actually talking to each other, I sit back and just ride the wave. And I found out, you know, that as long as they're talking to each other and they're discussing the issues and they're coming up with their own solutions by themselves, I don't have to work hard. All I have to do is wait until they come up, they finish the conversation. And I think that's the beauty of mediation is allow people to be able to have a dialogue with each other. To build trust. And shut up. To know when to shut up and listen, so that people can become great by themselves.

Bill Froehlich (01:39:13): I think you're reading my questions. So how did you build that trust between yourself and the parties and between the parties themselves?

Ken Bergeron (01:39:23): Encouraging them. Stroking. You know, stroking is a technique that mediators can use and I love it. You know, "superintendent I'm so with you on that, can you say that one more time? Or did you all hear what he said? Or can you say that again?" Or just encourage people to be forthcoming with knowledge or information. "Tell me more about what you're saying." Or, just do the, sometimes it's emotional or intellectual, you know, the intellectual stroking that people need for their egos so that they feel as if they're valued. And/or "can you, why don't you all talk about that amongst yourselves? Or let's have a caucus and can you either, can I break you up as a subcommittee for the next 15 minutes and have you all talk about that issue amongst yourselves as the subcommittee, while this other subcommittee talks about that?" You know, find ways to get parties to ... and in here, we're talking multi-parties. The biggest mediation I had was in the city of Minneapolis, I mean, the city of Milwaukee. We had 36 parties at the table. <Laugh> And that sometimes turned out to be a mediation that typically was about 46, 48 people at a time. And it included the mayor. It included the police chief, all of the Urban League president, the NAACP, Native American civil rights groups, some tribal members, Hmong community. I mean, everybody, the hob nob they wanted to be in that mediation because everyone who was important in the city was going to be at that monthly mediation at Marquette University. And I thought that, you know, it's good to have a high level mediation like that. And I love it when those things produce fruit. Some of those mediations, because they're so big, you have to section on it, you have to make, break it up into smaller pieces. Everybody's not going to get what they want at the first meeting or the second meeting or the third meeting, but their issue will come up in the fourth or fifth meeting. But having them there will let them know that at least nothing was said out of turn. Yeah.

Bill Froehlich (01:42:00): 36 parties. Oh my. It's hard to think through. I'm also hearing you talk about, or you referenced the subcommittees or working groups a couple of times, and I'd love to hear you say more about, we'll get to caucusing in a bit, but I'd love to hear you say more about how you use those subcommittees. And did you see them as a way to build trust so that folks talk directly with one another because you can't be in all those subcommittee meetings at once? So I'd love to hear you talk more about obviously the purpose of using those subcommittees to focus on concrete issues. But, was there, was it more than that?

Ken Bergeron (01:42:38): Yes. What it is, is empowering people at the table to become leaders. And if you put them in subcommittees, somebody's going to emerge as a leader, and then somebody's going to come back and do a report out for you, and they're going to come, they're going to be the persons that generate the solutions for that segment of issues that they're dealing with. And the more you empower people at the table, what you're doing in fact is when you're walking away, you're giving a person who may not have had a role in a dialogue with a law enforcement or a school district or religious community or whatever, now they have a voice and they feel as if they're empowered and they have to serve a role in some way to help keep things together.

Bill Froehlich (01:43:31): Yeah. I appreciate this idea of using those subcommittees and working groups as a point of empowerment to elevate leaders, to bring more people, to engage more people. That's a great. I appreciate that idea. Other ideas or concepts that you used intentionally to build trust between yourself and the parties or among the parties that you want to share?

Ken Bergeron (01:43:59): Some mediations were, you can get parties to draft, to write their agreements and put in language that you don't have to. And I think that what I liked either in most instances, particularly from mid-career on, I always gave the mediation agreement back to the parties so that not only could their legal officials look at it for sufficiency but they could add and tweak language to each other so that a final agreement could be worked out. And before I sent it to Washington for a legal review that the parties were very aware of what they're going to be signing. Yeah. So.

Bill Froehlich (01:45:04): That's great. That's good. Wonderful. So moving back to the agenda or the issues to be discussed, you put that draft out, I'm sure it changed or people, you got consensus on it at the first meeting, but as you engage in a long challenging mediation that might last many months, how and why did the agenda change? Or maybe it didn't?

Ken Bergeron (01:45:37): Agendas flow with your level of completion. Once you start knocking down the issues that they have, that they've identified, you know, you are trying to turn issues into interest. And so once you start to build and identify the interest of the party on each issue, you're really solving problems. And so, you know, you're chopping the, this tree down piece by piece. Once you get it down to the trunk, then you say oh, we're done. You know, is there anything else that we have left out or we need to have included here? So sometimes I would throw that out. But you, I often like to have all of the issues put out in the, you know, everybody's interest dialogued and discussed. And it's typically following the basics of mediation that you would follow. So.

Bill Froehlich (01:46:42): Okay, great. I appreciate that. So I've heard from other conciliators or colleagues, and I say "look, oftentimes parties come to the table with intractable demands like fire the police chief, fire the mayor, you know, county commissioners, all gone, right?" How'd you deal with intractable demands?

Ken Bergeron (01:47:05): Fort Wayne Indiana comes to mind and that they did want the police chief fired. Then the police chief walked away from the table.

Bill Froehlich (01:47:17): Oh, not at the beginning but in the middle. Police chief walks away in the middle of the meeting.

Ken Bergeron (01:47:21): Right in the middle of the mediation.

Bill Froehlich (01:47:25): That's funny.

Ken Bergeron (01:47:25): But. While you thought you were not going to get anything, I was able to ... this was over a shooting that they had. The department, the police chief walked away from the meetings because of a personality issue with someone being, making intractable demands. But the police chief had benevolent heart and said "well, we'll agree to improve X, Y, and Z," and then wound up signing off on the agreement. So, you know, we were able to salvage that. But, intractability is often driven by the psychology of the person who's bringing it. And you have to be able to see -. And sometimes it is self-serving, you know, in the psychology. "I'm doing this because I want attention. I want you to know how important I am. And I'm yelling and screaming at the top of my lungs and putting out these intractable demands, because I want you to know that I'm just as important as a mayor, of the police chief is, and I want everyone to be, to follow me as a civil rights leader in this community." You know? So. You have to look at things different ways.

Bill Froehlich (01:48:59): Did you ever ask parties, perhaps those who are making intractable demands but, to reframe an issue to make it negotiable? Did you work with them to do that?

Ken Bergeron (01:49:12): At every turn. You know, when you're making, you know, when people are making statements, you know, you're asking them to do reframing or to restate what their positions are and so forth. Or if there's a counter or retort of it, to even reframe what that is coming back from the other side so that people clearly understand what you're really, really saying. And it might just, you, it might be, you're just needing to get past the emotion and just get the, get your interest put out there. And so that's the value of reframing some of those statements that people make.

Bill Froehlich (01:49:54): Some of your colleagues from CRS would say "look, once you start reframing and changing the party's language to make it more neutral, or however you're reframing it, the mediation is becoming your mediation. The outcomes of the mediation are becoming your outcomes because you're doing that reframing either when the parties are expressing emotions or positions or whatever else." And it seems you don't share that perspective. Can you say more about that?

Ken Bergeron (01:50:30): I think you have to be as natural, you have to have a dialogue as natural as possible. You cannot take the power of emotion, tears, crying, profanity away from someone. If you reframe what they say, you have to say: "is, did I get that right? Or are you saying?" You have to have an open ended question. You cannot reframe something in a language that you have not tested. You should always test something that a person is saying. "Is that correct? Did I say that appropriately?" Otherwise, yeah, I agree with that conciliator who said that.

Bill Froehlich (01:51:14): Thank you for reacting to that. Well, Ken, our time for today is coming to a conclusion and I simply want to thank you for this enriching conversation. It's been such a pleasure to speak with you here this morning or afternoon depending on where you are in America. So let me hit this stop button now.

Ken Bergeron (01:51:39): Thank you.