Kenith Bergeron Part 2 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 2.

 

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Bill Froehlich  (00:00:05): Well, I'm here today it's June 21st, 2022 for the second part of our oral history revisited with Ken Bergeron. Ken, when we left off last week we were talking about table oriented mediation processes and that's where we're going to pick up today. And so if we can think about, you know, what you're doing when you're at the mediation table, that's what we hope to discuss. So the first question is how did you deal with, or how did you address, work with the parties to address, disagreements over facts?

Ken Bergeron (00:00:54): If -. Some parties come to the table and of course to develop their interest you have to flesh out a lot of information. People are, especially when surrounding violence or incidents where there has been an overt act of what is perceived as inequity, the inner community, people will present rumor or things that they've heard. Especially in a law enforcement environment versus community. And a community will present the rumors and law enforcement will come in and try to present facts. And they will throw back and forth at each other at the table and will dispute what someone on the street said or, and so forth, or some innuendo. And so either you have to ask for substantiation of facts with documentation or, and on both sides. You know, how do you document that? How do you say that that's real? And you know, either you accept it or we have to table it and we move on. It's hard to get around those issues. It's hard to get around people who believe that from the get-go that law enforcement is completely wrong, or school district is wrong, or an administration in government might be wrong about something. So documentation is always good. And if they are not prepared to present the documentation, you then have to table it, move on to the next issue, and then get the parties to come back with the information or factual information that they have or documentation that they have for the next session. So you know, those types of mediations take time. They are -. I don't believe that when you have sensitive information or sensitive issue, that it plays out well quickly. You have to be patient and you have to get the parties to adhere to patience. And as much as they want to seek some resolve and have some answers to issues immediately or have somebody fired. You know, it takes time. And because it's so important and lives are on the line and maybe lawsuits may follow and that kind of thing you have to be right in what you do. Because, you know, people will misinterpret the mediation as something legal. So you have to be very, very careful when it comes to documentation and how you ask for it, what you accept, what you allow on the table. After all, you are the third party neutral and you control the process. You have to be easy on the people but hard on the process. And sometimes, in a very gentle way, you have to, you know, put people or situations back into some semblances of order. Yep.

Bill Froehlich  (00:04:39): So just want follow up with that. You getting, appreciate your getting to guess reference there, easy on the people, hard on the process. But you mentioned, you said you have to be careful about how you, what you ask for, how you ask for it and what you will accept as substantiation when it comes at the mediation table. Can you give me an example of something you wouldn't accept as a mediator coming from one of the parties?

Ken Bergeron (00:05:14): I'll have, I'll present a case in point. We had a situation that caused a riot in a community in Michigan where it was alleged that law enforcement forcibly or forced a gang leader. Well, we came to later learn he was a gang leader. But he was allegedly dealing drugs. I'm not exactly sure this, whether or not he had drugs on him or not, but he was being pursued by the police. Police say he lost control of his motorcycle. The community said it was a white law enforcement officer who was in pursuit of this youth leader, drug dealer, gang leader. And the car pushed the motorcycle off the road into the bike with the rider on it, into a church where he was, into a fatal crash. The community alleged that the officer was white and that the police car was a tool that was used to, as a weapon to get this guy and to force the guy into the crash. The community had to have its side and its voice, and it had to be able to say what they had to say, but it was based on rumor. And the riots that followed that were based on rumor alleging that a white police officer involved was the person who forced this young man off this bike and causing the crash. The police said no, it was a black officer. He was light complected. Could have been perceived to be white, but was not. And he was following this young man based on information that he might have had some contraband in his possession. And so it's amazing that rumors play out and cause people to incite, even to the level of violence. They burned this town down virtually and to several sectors of the town and continued to riot for three days until we put some contingency planning and people in place. But until we were able to get the community to fully understand that the officer was not white, that the young man lost control of his motorcycle, that those were the things that caused this incident to occur. It was almost too late. But the residually, the information that we had did help to quell the violence after three days, otherwise it would've continued to go on. They attacked fire police. They attacked the police department. They attacked the fire department people who were trying to put the fires out. And it was just based on information. And I think there was a camera on the video or the car that was the evidence that was presented that helped clear this up. So that's just how, you know, information is, or the lack thereof is, can be utilized. And you have to get people to listen to each other. And because otherwise they will just continue to go on their and act out through their passions.

Bill Froehlich  (00:09:38): Yeah. And that particular example, it's really amazing to me that bringing this information to the table and the conversation helped calm the community down. And helped prevent the violence from simmering further, is what I'm hearing you say.

Ken Bergeron (00:09:58): Right. Right. It had to be presented to the community through the media. And it was, you know, at that time it was done in several different ways. It was done -. We did it in the print. Print media. We did it on radio. We did it on television. Everything. Just to try to get the truth out. So. And then of course we had a meeting with the officials and the civil rights groups, so that they fully understand what was behind all of this. And of course they demanded changes with respect to policing and more black officers, you know, policies on high pursuit chases and things like that.

Bill Froehlich  (00:10:49): So even though one of the precipitating factors in the violence in this community was the race of the officer, which was incorrect.

Ken Bergeron (00:11:02): Right.

Bill Froehlich  (00:11:02): There were still underlying tensions that came to the surface as a result of this conversation around equity and inclusion in the police force, diversity of the community and its leaders. So even though the initial perception of the race of the officer was wrong, there was still a seemingly a forward looking, a positive conversation about equity in the community.

Ken Bergeron (00:11:31): The community has, was historically black and had been for years and was policed, although by non-white, non-black law enforcement and even the fire department. So they were strained. They felt as if they needed some equitable representation in protective services. So and that had to be heard by officials in government. And I think they knew it. But, to find qualified people to replace, to get people to work in the community, was difficult. And it, and even now it's hard to find people in law enforcement. Recruitment for law enforcement is hard. Yeah.

Bill Froehlich  (00:12:28): Great. Thanks for that illustration. How did you deal with fundamental, likely non-negotiable disagreements, over values? So you might have a difference, two different religious groups at the table who have disagreements over values. How did you address that as a mediator or conciliator?

Ken Bergeron (00:12:50): We had a mediation where there was a mosque, that the Muslim community wanted a mosque built. And the, they presented, they had architectural renderings that had been approved by, you know, municipal government and several architectural firms. And they presented the request to build a mosque in a predominantly all white community that had a Muslim presence. But the -. I guess the thing about this mosque was is that it was situated in the Northwest Chicago suburb, suburban area that on Fridays, it attracted Muslim, Islamic members, faith members, to Jum'ah on Fridays from several suburbs. So there was a mass attendance at this mosque. It was a school that they were worshiping in, so they needed bigger facility. So it was -. The city had denied the zoning ordinance or denied zoning for the mosque. DOJ got involved from the civil rights division because they saw it as a violation of RLUIPA and CRS got involved on the mediation side. So with respect to things that were non-negotiable, the city felt as if a mosque in their community was non-negotiable. We don't want a Muslim mosque in our community, especially one with a minaret. And then you had a presence of white hate groups in this community. And you had a Muslim community that definitely had a need to have more space. It got down to the fact that the city did not want to be a party or did not want to be found in violation of RLUIPA. So they agreed to mediation and we had them at the table. They agreed to -. The city agreed to review the zoning. The zoning got passed. The mosque got built. But along the way, you know Bill, there was character assassination. There were some stereotypical things that were said that were hateful from one side to the other. And trying to get people to see and become civil through a dialogue process to help them understand. It took about a year of real serious negotiations to get everybody involved. And to understand each other. At the end, you know, they were all singing kumbaya in the dedication of the mosque and it was a happy event. But it was over religious values that were in conflict and having an edifice that was non-Christian in a predominantly all white Christian environment. It was a community that was not willing to make a change. So. Those are very sticky. Those are very sticky. They take they take time and a lot of caucus. And I think the the carrot was the civil rights division being able to hold, to say, look, you know, if you guys don't sit down and mediate, you know, we're going to bring, you know, some charges against you within violation to RLUIPA because this community has said that it is requesting to build a mosque for religious practices to which they are entitled to. So.

Bill Froehlich  (00:16:58): So it sounds like a lot of patience, caucusing and the carrot or stick of a different arm of DOJ, saying look, we may file this litigation. Those were some of the incentives and some of the tactics used to help break through this disagreement over values. Were there any -. Are there any other techniques or tactics as a mediator that are specific to addressing disagreements over values?

Ken Bergeron (00:17:27): Sometimes it's good to have mirroring. Well mirroring of, to let people see perhaps through their own lenses the thing to hear themselves in such a way that if they say something that is stereotypical -. Or let's just take a Native American community, where the Native American community will say "you know I remember you all attacking us or how you mistreated us in schools or how you took our land away." And then the other side says "well, you know, I wasn't there. We are not part of that. That's not what we're here to talk about now." But you've got to get people to acknowledge the past, especially in native communities and/or communities that feel as if there is some residual or some latent pain that is unaddressed. Be able to get, allow one party to say "tell me more about that history and how that hurt and how that leads up to now." If you can get that to happen, then you allow the other side to see it perhaps through some reflection, how the other side is feeling about a current issue. How it all is tied together. And so, you know, you just try to get people to be patient. To listen. And I think as a mediator, you've got to let that play out. You can't let one side dominate the other. And in all my mediations I was never wanted to be perceived as being impartial, you know. I mean, never to be perceived as partial. One side's position or another. So you know -. And one side tells their story, then you get, you wait for a reaction. And you try to get the, when on the reaction side, you try to get someone in leadership to respond. So most of them are pretty, pretty understanding. So.

Bill Froehlich  (00:20:13): So as I understand it, mirroring is a term of art in the transformative mediation community. And so I want to make sure that I understand your definition of mirroring.

Ken Bergeron (00:20:25): Well, I perhaps, in the real sense, what mirroring is, is to let a person see themselves. And through dialogue is either you question them about what they've said or you allow someone else to say "I heard you say this, but the reality is is that you, you are doing this." So you can achieve mirroring in different, through different means. The simplest way is to let a person speak for themselves and then give it back to them or let them be able to see what they've said may have some fallacy in it. And hopefully that'll bring about some transformation.

Bill Froehlich  (00:21:13): Thank you.

Bill Froehlich  (00:21:16): So how did you deal with power disparities in a mediation session? Did you make any efforts, for example, in prior oral histories you've heard that in mediations or facilitations between prison warden and those who are incarcerated, a CRS conciliator has trained the incarcerated individuals so that they can become better negotiators and work with more clarity at the mediation table. Did you make any specific efforts to train or empower those traditionally low power groups?

Ken Bergeron (00:22:12): Well, what I think you're talking about Bill is leveling the playing field and how you do that is important. If you've got a serious mediation, you've got to achieve that. You've got to be able to give, develop mediation strategies equally on both sides. You've got to talk to each side about what to expect in the arguments that are going to be presented at the table. And you have to talk about who's going to be speaking and what is, you know, initially what is going to be said. Who's going to present the opening statement? Who's going to present an opening response? What should you expect to have? What should you expect to hear and how should you expect to react to it? So I would in my assessment and in my pre-mediations, I would meet with each team and I would say "who is going to be your spoke?" Oh, gosh, here we go again with the camera.

Bill Froehlich  (00:23:16): Oh, no, not the camera! Oh, shoot. That's ok. Just pause this for a second. Okay. So the recording is now back on. Yeah. We're going to cut that part.

Ken Bergeron (00:23:30): Okay.

Bill Froehlich  (00:23:30): Okay. You were talking about in your pre, in your assessment pre-mediation work, talking about try to go over the parties that are opening. Who's going to speak. Who's going to be at the table. Who is going to speak and say what and when. So you were giving a little more details about how to address power disparities.

Ken Bergeron (00:23:52): So as I indicated, having to do your pre-mediation is important. And, let's see. I am trying to -. Here we go. So your permeation sessions should be where you talk about who's going to present the issues. Who's going to be the spokespersons. Who's going to be a note taker because you should as a third party neutral not take notes. And in so doing you set a protocol on how the mediation is going to play out on both sides. So. I have a webcam I'm just trying to start. Anyway. I typically wanted to have time to spend with both sides to prepare them on opening statements, response, note taking, remarks, how to build their strategies, what to expect, and how they should move forward in presenting their arguments. So that was, that's my strategy on how you begin this. It's hard to do that if you have, you can't get each side organized, unless you're going to caucus in the beginning. And that's going to take time away from your first sessions. And your first sessions in mediation are crucial on, in terms of building trust in the mediator. But if you are taking time to spend with each side, now each side is going to question you on "well, why did you spend five more minutes with them and you didn't spend five more minutes with us?" So that's, you know, that's why you have to do pre-mediation first in the beginning. Yep.

Bill Froehlich  (00:26:16): So it sounds like to deal with some power disparities you'd work on this in the pre-mediation session. Would you also test with the parties how their particular strategies might play out? And so, for example, I could imagine you saying to police chief "okay police chief, you're going to say this and you'll be the spokesperson." Would you do something like say "how's the other side going to react to that? What do you think their reaction will be?" Or would you just work through their own strategy in advance of a mediation session?

Ken Bergeron (00:26:54): I do present that to them and suggest that they think about how each side is going to react to the other. And what happens is that you prepare people to hear things that might be hurtful, not truthful, or otherwise. And in some instances, whether it's law enforcement or the community, based on the information or circumstances around the mediation, there's some talk about, there should be some talk about, you know, how do you prepare with documentation? What are you going to bring to the table as evidentiary information? And that's also good. So you as a mediator, and then in a pre-mediation, if you do your homework and prepare the parties, you're only going to improve the level of mediation that you're going to have. It's going to be more, I don't want to say professional, but it's going to have a little bit more order. It's going to be seen by the parties as respectful and well controlled and a process to which they want to participate in. So that's very important. Yeah.

Bill Froehlich  (00:28:41): So how, when tension arose at the table, when people start, tensions get escalated at the mediation table, how did you work to diminish that tension when hostilities increased?

Ken Bergeron (00:28:59): Well, in a lot of ways -. I'm being distracted here. I'm trying to set up another camera that's not working. So let me just focus on what I'm doing it. It's not going to work. When tension plays out at the table, whether people use profanity, they act out, the worst thing is to see in a mediation someone to try to become physical. Because as a mediator, you're responsible for protecting the safety of everyone in there. So you have to quell and stop that immediately and ask the person who was being violent to -. You stop the mediation. You ask -. You try to meet with the person, or you ask them to leave until they've calmed down, or you speak to the leader of that person's party and ask them to control it. It is better that you use the leader for each party to control their people even if it's that person themselves, rather than you injecting something. Because if you inject it, then you're policing and you're going to, you might lose trust. Because you don't know how people feel about the person who threw a chair across the room, or who used profanity, or stood up and had a rant for, you know, four or five minutes. And so you ask the leader of the mediation, or you call caucus, and say "you know, can you work with Mr. Williams and see if you can get him to calm down. Or ask maybe he can come back in tomorrow, or the next time we meet, or maybe he can come back in the next 30 minutes." You know, that kind of thing. It's good to have people express emotion, intentions, sometimes, because the other side needs to know how deep the hurt is. It might come from law enforcement. It might come from the community. But still, if there is emotion that has to come out and people who have feelings have to be heard, that's important because you want people to come out and say "you know, I understand how you feel and how this might impact you." So you know, I think that feelings are important. But I never try to let things get out of hand. I'm sorry for being so long.

Bill Froehlich  (00:31:36): No, that's a great answer. I appreciate you sharing, particularly, you know, the chair thrower for example. That you would quickly caucus, ask the leader of that group to work with Mr. Williams, the hypothetical person in this case. Perhaps have a cooling off period. Perhaps ask them to take a break from a conversation. But still it would be valuable tt seems to even have them come back into the conversation when they're able to do so in a constructive way.

Ken Bergeron (00:32:08): Right. And it's better not for you, not to do it yourself. You know. Yeah.

Bill Froehlich  (00:32:16): I'm also hearing that you welcomed emotion in the room because people need to hear that as they engage in a mediation session. So thank you for sharing those illustrations. Can you tell me generally how long would a table oriented -. And you're back.

Ken Bergeron (00:32:38): Yeah.

Bill Froehlich  (00:32:38): How long would a table oriented mediation process take? Would it be a one 90 minute session or could it last years?

Ken Bergeron (00:32:50): It could last years. It depends on the complexity of the issues. If the community's issues are systemic and go deep, it's goning to take time. Because, and, you know -. I -. In premediation I try to get the parties to write out their issues and be able to present the issues in writing from one side to the next. So law enforcement, or a school district, or some city administration, may not have a lot of issues because, you know, they're in control of stuff. But the community generally has a lot of issues. But the law enforcement may not be aware of them. So it's better that parties write out their issues and concerns. And sometimes police departments have -. I just tell them, "is there something in the community that you don't have?" I like balance mediation where the community is not doing all the begging and asking and the community itself is you know, is presenting their issues. But I want law enforcement to ask, or the city to ask, or the school district to ask how to improve the relationship. Can you do a better job to help us instruct our children? Can you be on our school board? Can you be a civil rights advisor? Can you be a recruitment, help us recruit teachers of color or police officers of color? So I like to see things balanced in terms of interest and/or issues and well, not issues, but interest. Yeah.

Bill Froehlich  (00:34:40): So I'm hearing you there. So you ask the parties to write down their issues before coming to the mediation table, perhaps to present and share with the other party.

Ken Bergeron (00:34:53): Yeah and hand them as you go, as you begin the opening statements, have the parties present that piece of paper to the other side so that they can read them. Yeah.

Bill Froehlich  (00:35:02): So would that become your agenda for the mediation?

Ken Bergeron (00:35:05): It certainly does. It becomes the agenda because I'm going to ask them, I'm going to ask them specifically "out of everything that's been presented, what do you think is the most important thing that you need to have discussed today to start this process? What do you think is going to take the most amount of time and how then should we proceed?" And I ask them, and I give them an opportunity to structure the mediation based on the importance of how they see things.

Bill Froehlich  (00:35:37): Would that agenda evolve over the course of six, seven mediation sessions? Or was it usually consistent?

Ken Bergeron (00:35:45): It can change. It can change based on availability of information, or research, or the lack thereof. Some people may not have information and they may be relying on third parties or other parties to get it for them. Or things in a fiduciary sense may take time. You may not have the resources to implement what the community is asking for. And you have to set up an ordinance, or a policy, or a protocol that has to go through city council, or has to go through the school board, or has to be negotiated in some way. So sometimes issues, or things that people present, their interest, are not necessarily achievable immediately. They do take time.

Bill Froehlich  (00:36:40): So with respect to solutions, how were they developed? The parties developed them on their own? Did you point them towards what might have worked in other communities? Did you develop them yourself?

Ken Bergeron (00:36:54): I try not to impose solutions. Never impose solutions on a community because if you do, then you are coloring that government. You're coloring that community and how they live. Let people work out their own problems, because they'll say "the mediator told us how to do this." You can serve as, and provide some information from, as you indicated, from previous case work or perhaps some resources that you have. But even if in doing that, you've got to let them figure out ho

Mw they're going to flavor their own Kool-Aid, you know. They can take your information, but they have to put their own sweetener to it because, you know, it might be too sweet. It might not be sweet enough. But it's got to be something.

Bill Froehlich  (00:37:43): I appreciate that Kool-Aid reference. Do you, did you ever point them if they asked you, you know, "well, what should we do?" Did you ever point them to what other communities have done in the past or in other similar situations?

Ken Bergeron (00:37:57): Yeah. It important that you say "I think you should," because they will write that down and say, you know, "Bill said we should." You then point to, as you indicating now, you know, you point to a community that you worked with and say. "well, they did this." Or "you might want to look at several websites." Or I would say "let's do a subcommittee and have them go back and look at how we're going to move forward." Like, for example, you want to form a police advisory commission or a human relations commission. Well, a human relations commission for one city and how it operates may not fit the, how that community that's at the table wants to do things. A police advisory commission that wants to do investigations, or some sort of, have an independent auditor come in and look at things, that may not be acceptable to some communities. They not want to spend money on an attorney. They may not want that at all. They might simply want an advisory capacity to work. So you point them into models that are online across the country and say "look at these things and come back and tell me what will work." And then once they do you start getting them together and say "well, you know, police chief and, why don't you all meet two or three times before we come to the next mediation session and come off, come back with an outline of how your police advisory commission is going to work and be different than what you had before."

Bill Froehlich  (00:39:49): So the, with respect to solutions, when they were agreed upon, did you do anything specific to assure that they would actually be carried out? Did CRS have any role in post mediation phases or post negotiation conversations?

Ken Bergeron (00:40:11): Setting up timelines, getting people to agree that, or have them set up their own timelines. So let's just say following the mediation you agree that you're going to go into city council and have an ordinance pass. You're going to have a mediation session signed at city council. And you're going to have a model of the human relations commission signed off on and that city council on this date. Or you're going to do it in six months following the mediation. But whatever that timeline is, it has to be agreed upon on both sides. And, you know, they have to figure out who's going to present it, how they're going to support it, what their meetings are, and all of those things. And the best thing you can do is just be, just to manage that process so that it works out. Because if you don't do it, then somebody, either the city or the community, is going to try to take control of how they think it should be implemented. And then you're back to a fight again, possibly.

Bill Froehlich  (00:41:19): So did you, you set up a timeline, I assume as part of developing an agreement. Did you check back in with the parties to make sure they were following through with the timeline?

Ken Bergeron (00:41:29): I did. But I'll be honest with you, Bill, I didn't see the importance of doing timelines until maybe the latter half of my career at CRS. And because I always felt as if it was just important just to have people talk. But I would, what I began to understand is that you have to have people that come out with a working agreement, and timelines, and deliverables put in place so that things that they agree to at the table will actually be done. Because if they don't, you know, then all that time that you spent at the table could be meaningless.

Bill Froehlich  (00:42:07): So tell me, based on your observation, were the agreements the parties came to, were they durable? Did they last? Did they follow through with their commitments?

Ken Bergeron (00:42:17): Most of them lasted, I, typically most CRS agreements that I did were five years. Some were 10. Very few were 10. But most of them were five years. And I would always, you know, after the mediations had finished and before everything was consummated or signed off on, we are required to run all of our drafts through our legal counsel for legal sufficiency to see if they will stand up for the Department of Justice. And so, most of the time mine, you know, went through pretty good. You know, except for maybe some tweaks here and there. But you know, they were pretty substantial and they held up. So I still get calls from some of the communities that I work with asking for advice and, you know, wish I could still be doing it sometimes. Yeah.

Bill Froehlich  (00:43:30): Fair enough. So you mentioned earlier that you don't take notes at the mediation table. Can you say more about that? And how do you stay connected to the case when it lasts month for months on it?

Ken Bergeron (00:43:50): So, at the end of each session, you're going to have to write a summary report of what happened. So only thing you could do as a mediator is capture points of agreement. "The community said this. The school district said that." The city of, you know, Toledo said this and this is what they said that they were going to do." But those notes become the things that go into your summary report. But the how to, and when, and all of that stuff, I mean, you got little quasi notes. But you don't want someone to say "we're going to go into court and sue the city and then we're going to subpoena the notes that the mediator had during this session because those are documents that the city has proof that they were going to do X, Y, and Z." And so you have to be real careful and tell the people, "you take your own notes because I don't take notes and what I, if I do need take notes, they're just to capture points of consensus. And when I'm done writing those down, I destroy them". So that lets them know, they can't come back to you for that. And, you know, people as I've heard over the years, on two, at least two occasions, communities have tried to go to court to get CRS conciliators to to be a part of the process. And yeah.

Bill Froehlich  (00:45:27): Can you say more about those two occasions? Did either involve you or?

Ken Bergeron (00:45:31): No, not me. This was probably before my time. It was just said, I don't, it wasn't rumored, but I guess at some point in time some parties have, I don't know if they were community groups or law enforcement or whoever, but tried to get CRS to come and testify or be a part of a court proceeding.

Bill Froehlich  (00:45:57): Were they successful?

Ken Bergeron (00:45:59): No. No.

Bill Froehlich  (00:46:01): Still a risk though. Still a risk and one not worth worth taking. Thank you for sharing that practice. You mentioned that your agreements were often five, ten years. From your observation, what were the core values, core concepts of the agreements? Did they continue beyond the five or ten year period based on your observation?

Ken Bergeron (00:46:34): Yes. The mosque mediation. The mosque is there <Laugh> and becoming a viable part of the community that didn't want them. The Native American communities are still pressing for improved relationships from their strengthened position. I think the mediation allowed them to be recognized for the need for cultural values and inclusiveness for Native American education we had talked about earlier. So it did help the Native American community. Anything that helps the community to build from one level to the next, to the next, to the next, so that they are able to be more inclusive. The mediation process simply helps as a process that enables good government to occur.

Bill Froehlich  (00:47:41): Is there anything you'd like to say about table oriented mediation processes before we turn to street mediation?

Ken Bergeron (00:47:51): You have to watch everything and everybody. You can't, you know, it's the less you say sometimes the better off the mediation will go. I would offer that to anybody. And then not to be so controlling at the table, but to be moving. To be -. It's important for a mediator to move the process. To know when to move the process. When the issue or the interest has been identified and when the points of resolution have been achieved. And once the points of resolution have been achieved on the interest, then move it. Move to the next one. Move to the next one and so forth. Try not try not to dwell on things, and dwell on people, and try not to ingratiate people so that they feel as if they can talk a long time and be heard because they will dominate a process. So try to move a dialogue around. Be fortuitous of other people who are silent and ask them "what do you think? You know, Ms. Johnson, you haven't really said anything. How do you feel about what's being said? Is there anything you have to offer? Officer Davis, I haven't heard anything from you today. So can you offer, can you give us any feedback?" So push people to get involved in the process. Otherwise 'reyou just stuck with two or three people. So, yeah.

Bill Froehlich  (00:49:21): Great. Thank you. So I'm going to transition now to street or community oriented mediation processes. But here thinking about demonstrations, marches, protests, how you might work with individuals who are on the ground in those types of environments. So the first question is when you are called say to Chicago to work on site at a demonstration, if that occurred, what are your goals for a process like that?

Ken Bergeron (00:50:01): I don't think -. First off, I need to say this: that there are some rules of engagement that have to be identified early on if you are going on the street. When we started, when I started, we had, it could be a polo t-shirt, it could be a jacket, it could be a hat, but everybody had identifying markers as to who you were. But the community didn't necessarily see you as CRS or understand what CRS's role was as a third party neutral. They thought you were part of law enforcement, seeing the DOJ seal. Once they got to know law enforcement, you had meetings with them before you got on the street. So they knew who you were. But not, you know, and sometimes if you were able to get the NAACP or the ministerial alliances to meet with you, then they all know who you were. If you had a God Squad or that kind of thing. But if you didn't have that and those people who showed up and didn't, weren't at those meetings, they didn't really know who you were. I recall several times when we were on the street and used to try to stop the escalation of violence, that you either wind up trying to walk with people who are protesting, whether you're setting up -. And you try to do self marshal training with people who are protesting. And you try to get law enforcement to be present at those self marshal trainings. Or you try to get law enforcement to understand what, how, and when the protest march is going to start, end, and how they serve to make sure the exercise of first amendment rights are being upheld and their role with law enforcement as to make sure that that demonstration is going to be peaceful. And that's typically your role, is to make sure that the demonstration is going to be peaceful. When you have some outsiders come in, they may be a hate group. They may be an activist group. And they try to bust up something. You can engage between them. You can get between them and try to suggest that they keep moving. Or to stand, you know, try to stand down from their positions and talk them out of, you know, becoming violent. Or get the marshals from the demonstrators to move their people forward and not to stand still. So we're talking about marches and so forth, but when conflict occurs between an outsider and/or demonstrators and/or law enforcement, in the past we had people who would intercede and would stand between and would try to encourage people to keep moving. I know that I had a demonstration on the west coast where I was able to stand between some demonstrators and it was acknowledged on CNN or they were able to see us. And got a call back from someone in DOJ hierarchy and complimenting us for injecting, for being present and stopping the confrontation between the people who were bringing the violence and to stop the interactions with that group and the law enforcement. So I know it can be effective. CRS has been, perhaps since Ferguson, Missouri, we no longer necessarily wear our identifying markers. T-shirts, hats, and things like that. Some people go out to a demonstration wearing business casual. And then there are instances where conciliators have been told not to engage, or not to be on the street, and simply to monitor. And the only thing you can do in those instances is to set up some training protocols that you hope will be followed before. And perhaps be on the street to monitor. And maybe do some guidance to the leaders of those groups, particularly when now they want you to be hands off. So I think in the past CRS had a great conciliatory value on the street, which is on site mediation, which is what it was called. And that onsite mediation resulted in preventing the escalation of violence. It wasn't always something that was just, you might engage and do something like that three or four times during a demonstration or during several demonstrations. But it didn't happen all the time. Sometimes where they will shut down an intersection and traffic is blocked. Then you have to go between law enforcement and the people and say "well, you know, can I get you to move so traffic can flow.?" "No, we're going to be here for about 10 minutes." "So can I get you to move it to five minutes?" And, you know, you go back and forth and then whatever they say, you go to law enforcement and you say "well, they're asking for five minutes so they can make a speech. And after five minutes, they agree they're going to move down Losal Street or whatever." And so you get that to work out. So you wind up doing shuttle mediation, as opposed to letting, having the police go in and forcibly move the people off the intersection to get traffic to go. Because once they intervene and start forcing people to move, then you got some violence. So as a mediator, you can stop that.

Bill Froehlich  (00:56:32): So I'm hearing you that there's been a shift, perhaps post-Ferguson, to where you're not asked to intervene anymore. To do this onsite mediation. Now you're playing more of a role from an observer. Can you say more from your perspective about why that is or how that shift has taken place?

Ken Bergeron (00:56:52): I think there was perhaps some fear that CRS would, CRS conciliators would be caught up in violence themselves. Or there was some fear that, you know, that we would be involved in some sort of altercations with law enforcement and the demonstrators. Or something might go awry, which would increase, which might force some liability for DOJ at large. For various reasons, we are not necessarily doing it. But I think there's a role and there's a time for CRS to be on the street monitoring stuff and knowing when to intercede. I just don't know that -. I don't see that they have -. We used to, when I started back in the early two thousands, we would be trained on how to intervene. What to do and what not to do. Some of it rolled up into our self marshal training and some of that were just tactics that conciliators would share with each other. And these were legacy trainings that were done. And some of those people are no longer with the agency, but their ability to talk to gang members, or to talk to civil rights groups, or you know, college students on certain levels, to build trust with them, was invaluable. And how to do that. Nowadays, I'm not exactly sure if we have that ability. Or we train on that as much.

Bill Froehlich  (00:59:07): Can you tell me more about what that training looked like? This training on intervention when you started at CRS?

Ken Bergeron (00:59:19): We had a group of conciliators who -. In certain parts of the country, region four, region nine, were communities or areas that there were always some civil rights marches, or there was always a protest, or demonstration with respect to, or over some rights issues. And there were demonstrators, counter demonstrators, as well as law enforcement involved in, you know, in some of the marches that took place. And CRS's role was to, really early on, was to make sure that the people who were protesting had a plan. Had marshal training, and knew when the march was going to start, when it was going to end, and coordinate that all with law enforcement, and have both groups come together and agree how things were going to work. And so, you know, that was pretty straightforward on self marshal training and how to set up a demonstration. I think some of the marches that came out of the latter sixties, the Edmund Pettus Bridge march ,started CRS's role in being a third party neutral in helping parties to organize their marches. And, you know, even now with Black Lives Matter, we encourage them to have marshals in the front and the back and that kind of thing. In answer to your question though, there were conciliators who had street savvy and would tell you, or would talk to you about, or teach you about how, what to expect with certain parties who were on the street. What some of their tactics would be. And what you can anticipate in terms of those things occurring. Whether it be controlling an intersection. Whether it would be faking an altercation. Or doing anything to draw attention to their issues. And so, we would either talk to them about when they were going to stop and do a speech, preventing them from doing an altercation, or talk, they would talk about how to keep people moving so that demonstrations did not occur. I don't think there was ever a time when we were in harm's way, per se. That I recall. In as much as what we did, it was either dialogue, getting between demonstrators and law enforcement, or it was getting people to be able to move on through a process. And so we would often debrief, brief and debrief, about what to expect, what we did, and what we anticipated happening. Some of the, there, at political conventions, like the RNCs and DNCs, there were a lot of marches. And so you had to be prepared to do onsite conciliation work and to keep parties from, to continue to do their protest, and to stop conflict from occurring. I think that's the value that CRS can serve and continue to serve, but I'm not so sure that we do that anymore. Law enforcement definitely appreciates it because they don't have to get involved. They don't have to touch people. They don't have to arrest because CRS is helping. That's the value.

Bill Froehlich  (01:03:32): Thanks for sharing this context and how there's been a recent transition. I want to talk, when you were doing this work -. So I want to focus on when you were doing this street focused or onsite mediation -. When you met with parties prior to involvement, say you met with police in advance, or say you met with an advocacy group you knew was leading the protest, what would you do with them? Would you train them in self marshaling with the advocates? What would you do with police? What would those conversations look like?

Ken Bergeron (01:04:05): Well, you probably want to start with, it doesn't matter where you start, but if you start with the activist communities people who are going to bring the protest, nowadays CRS has PowerPoints and, not PowerPoints, but well, yeah, they do have PowerPoint trainings for self marshal training or demonstration training, or marshal training, whatever you want to call it. But they have that training so that you then would take all of the people who would be in the community or participating in that, or the marshals themselves, the leaders in the marshals, and you take them to the training and show them how you should organize and so forth. And you, with law enforcement at the roll call meetings, you want to be, have a presence, and you want them to know what you look like. You know, what clothing you wear and what your role is going to be on the street. And you can talk to them or invite the people who are protesting into the roll call meeting so that people know how the protest is going to go in advance. The more you bring people together in advance of a protest march, that is the greatest indication that it's going to be peaceful. The less planning, the more opportunities arise for any kind of active violence, you know, occurring, or any kind of civil unrest, or any thing that goes awry that is not anticipated. So pre-planning is very, very important.

Bill Froehlich  (01:05:52): So let's say you were working with advocates from NAACP or Black Lives Matter on one side, and you were training them to do self marshalling. Did you still see your role as impartial and neutral or did you see yourself as a consultant helping to make the protest more effective or more peaceful?

Ken Bergeron (01:06:17): I think it's a consultant role. It is a neutral role that you play. And when you're done you walk away and you tell them how not to get in trouble. You tell them how you work out protocols about working with people who may have some illness. Someone who may be approached by a counter demonstrator. There are various scenarios that you play out during the training. But you want to have them prepared to deal with all of it. The thing I learned as time went on from the early, from the year I started in 1999, from that training, those trainings all the way up to 2020 when I left, 20 yeah, I found that people, even Black Lives Matter or Latino groups that were on the street, knew the importance of having a marshal. Having leaders and self marshals around the perimeter of their protest. Nowadays, most people understand that that's how to do it. And that really comes from CRS's work back during the, at the Edmund Pettus Bridge. And I like to tell people that, you know, Dr. King used CRS to help. Even Jesse Jackson used us to help in some of his demonstrations. I was on several of those marches. But.

Bill Froehlich  (01:08:00): Do you want to say more about those?

Ken Bergeron (01:08:04): Perhaps the longest self marshal training I was in happened maybe somewhere in Louisiana when there was a protest march around nooses. And I remember doing self marshal training from, <laugh> and this was active self marshal training for about 25 to 50 people at a time. Because we had about 2000 people there. So we did about three or four hours of self marshal training with 50 groups of people one after another, after another. So I thought that was amazing. But it was effective because along the route from where we started all the way to downtown wherever we were in Louisiana, there were KKK members along the march perimeter that were agitating. So it was good we did the training. So people wouldn't engage.

Bill Froehlich  (01:09:03): So the self marshals part of that training is to highlight how not to engage with folks who are countering.

Ken Bergeron (01:09:09): How to keep peace. How to keep peace.

Bill Froehlich  (01:09:13): Were there ever times where you tried to redirect a demonstration in any way? Meaning change a parade, change a demonstration route or anything along those lines?

Ken Bergeron (01:09:26): Yeah. I didn't change it. The community, the demonstrators, changed it. They said they were going to go one way and they were being disingenuous and purposefully to get law, to throw law enforcement off. In other words, rather than them march from the governor's mansion to the point of where the shooting occurred, they wanted to go on the expressway. So they told law enforcement and me at the beginning of the march, we're going to march to where the shooting occurred. And then when they got to a point where they were going to cross the expressway, they all did a beeline down on the expressway and stopped traffic and held up traffic for about three hours. So the only thing I could do was to try to work with law enforcement and the demonstrators so that they would agree to, you know, move on so the traffic could re-flow. And you know, state, the state troopers were upset, and because traffic had backed up for many miles, and they were wanting to free up the system so that people could continue to go. And then, you know, that cites another point that people themselves who are leading in action may not always tell you the truth as a mediator. But you still have to work even after they've done something that's wrong to undo it to try to get them to move to the next point, rather than walk away. Because if I had walked away, then they would've been forcibly evicted from the expressway and jailed. And so good thing was that they weren't. And they were forced to get off the expressway, but not forcibly.

Bill Froehlich  (01:11:52): Yep. Can you tell me about any times where you deterred violence specifically? At, during a street mediation or intervened in order to deter violence?

Ken Bergeron (01:12:06): There was a group of anarchists that were about to throw down on law enforcement at a march, at a political rally. And I stepped in between them and at the top of my lungs simply said "move on." And as loud as I possibly could "keep moving, keep moving. You are not going to, you know, there's not going to be any violence here right now. Let's keep going." And I think I did it in such a way without the police. The police were behind me and I was facing the anarchist group. And luckily they listened and kept going.

Bill Froehlich  (01:12:50): Wow, incredible. So you trained protestors and advocates in self marshaling and other ways. Did you ever train them to more effectively articulate their needs and interests during a street mediation or in advance of a street demonstration?

Ken Bergeron (01:13:07): No. No. Because then that would be really kind of advocating for them or telling them how to run their march and that kind of thing. So, my only, our only concern at CRS was making sure that whatever was happening on the street was done in a very peaceful way. You know, it is important for people to exercise First Amendment rights and do it in a peaceful way as opposed to have Ferguson blow up, or Baltimore, or any number of things where, you know, cities are torched and violence is going everywhere. You know, CRS was really kind of created and put in the commerce department because of the civil unrest that happened in the early sixties where cities were burned and torched. And so anytime that you, that violence occurs it destroys the continuity of business and the flow of business. You can't have business when the city is burning. Schools aren't in session. And so that's why CRS was in commerce in the beginning. But, you know, later on was, you know, moved to the Department of Justice. So, and I think that was appropriate. But, you know, it would've, we would've continued to look as if we were, we existed to protect the business interest of the nation, as opposed to the civil rights interest of the nation.

Bill Froehlich  (01:14:36): Were there - . Sorry, go ahead.

Ken Bergeron (01:14:42): No, I just tacked on being neutral. That's all.

Bill Froehlich  (01:14:48): Were there other parties involved or affected by your efforts on street, in street mediations? And how did you work with them?

Ken Bergeron (01:14:58): I don't really know about other parties. Can you explain more about what you mean?

Bill Froehlich  (01:15:06): Yeah. You might have worked with other parties to collaborate, to do self marshaling training. You might have worked with other agencies to support your work. I don't know. That's an open ended question.

Ken Bergeron (01:15:22): I think we just, you know, the self marshal training, if it's done right, if it's done well in advance of something that's publicized. You know, if the entire community knows that on Saturday, July 3rd, everybody's going to be out protesting downtown. And if it's not a march, if it's a rally, then you want everybody trained on how to keep a rally peaceful. And I, you know, every training that we do, or did, was just helping everybody prepare for that. Yeah.

Bill Froehlich  (01:16:13): Okay.

Ken Bergeron (01:16:13): Including those people who were not there. So.

Bill Froehlich  (01:16:17): So you mentioned table oriented mediation. And one thing I talk about regularly is how to build trust. And on a street mediation, you don't have much time with the parties. So how did you build trust and rapport quickly? What did you do to build trust to help keep things peaceful?

Ken Bergeron (01:16:40): You have to introduce yourself in the beginning to people and let them know that you are a third party neutral. You -. On both sides, law enforcement, demonstrators. People, if you're doing the training, then they fully understand your role and see you as a neutral and someone you can trust. And when they see you on the street they can point you out and say, you know-. And another thing that you do is of course, you establish protocols of communication. You enable the protestors and law enforcement to talk to each other. Because in most instances, if you had not been there, they don't have the communication protocols. They don't share each other's cell phone numbers. So now with you being there, you have enabled them to now share that. And when something goes awry, they now start to talk to each other about, you know, "we need help down in third and state street to help us to stop a potential riot. Or there's a car that's blocking traffic. Or, you know, we have a potential fight going on down here." So you become a conduit of information sharing and you enable people to talk to each other. And through the training, you build your trust. That's where that occurs.

Bill Froehlich  (01:18:13): Ok. How did you decide it was time to end your involvement in demonstration when you were engaged in street mediation or street de-escalation?

Ken Bergeron (01:18:28): Well, the demonstration isn't over just because it's over. You have to wait until everybody's gone home. Because perhaps the most violent time in a demonstration is at the end when people are trying to leave. And then there's the potential for counter demonstrators and demonstrators to start bumping heads with each other. So you still have to have a presence so that the, you know, when people are leaving, the egress or however you call it, is done so that you have maintained some safety to prevent violence from occurring after the fact with counter demonstrations or even demonstrators in law enforcement. You have to be there. It's over when everybody's gone. Yeah.

Bill Froehlich  (01:19:29): So I also, you mentioned de-escalation earlier and I wonder if there are any specific de-escalation techniques that you used during street mediation to deescalate tension between protestors, protesting groups or between protestors and law enforcement.

Ken Bergeron (01:19:51): I wish I shared the self marshal training with you because some of the language about de-escalation techniques that are in there pretty much, and it's, these are the things that you say you don't say. You know, you don't touch people. You don't tell them that you understand, because you don't. You try to get their marshals to engage so that you don't have to. And if they don't, then you have to encourage the marshals to get engaged and to do what they have to do. It's a delicate balance. But in the self marshal training you have to get people to learn the techniques. It's kind of a verbal judo getting people to really just to keep peace and not become violent.

Bill Froehlich  (01:20:55): Great. Is there anything else you want to tell me about street oriented mediation?

Ken Bergeron (01:21:02): I think it's something that CRS needs to continue to do. They need to go back to it. And be at least available for law enforcement and/or demonstrators to be either monitor or to train, or to know when to engage and offer advice to law enforcement or demonstrators on how to keep something peaceful. It's simply being present at a rally or a march. And if you've done all your work on the self marshal training, you really don't have to do that much. All you're really doing is monitoring, but be at least be there, as opposed to being invisible.

Bill Froehlich  (01:21:51): Yeah. Thank you. So I want to transition now to a set of questions about typical cases. Not that you ever had one, have a typical case. We know that no case at CRS is typical. But I wanted to ask you a number of questions and there are also some policy questions in here as well. I'm certain we won't be able to finish in the next 35 minutes, but I don't think we'll have another two hour session to go. Are you ready to go, or do you want to take quick break?

Ken Bergeron (01:22:22): I'm fine.

Bill Froehlich  (01:22:22): All right. . . So now the question. So Ken, looking more broadly at your typical case, we know there is no typical case at CRS, but wanted to ask you some questions generically that you might give us your answers to. What kind of roadblocks would you encounter in your efforts to work with the parties? How did you surpass those roadblocks?

Ken Bergeron (01:22:50): What are roadblocks? Well, timing could be a roadblock. The not wanting to sit down. The lack of trust in one side or the other is a roadblock. Losing momentum is a, you know, is a harm when you lose. When timing is a factor. Because you want to respond early when things are hot. Sometimes a roadblock can be an ongoing investigation by a federal agency, including your department and you can't get involved. And then the parties who trust you and want to see you help them and are prepared to go to mediation. Are expecting it. Are looking for you to do something. But now all of a sudden, now you have a roadblock because an investigation is not being done. You can't, you pretty much can't do anything about it. You can try to win over trust of people who are stale mating and suggest to them it would be in their best interest, a BATNA or a WATNA, or why they should be at the table. And I think the, I don't know, maybe beyond those things, I really haven't seen too many roadblocks. But they are, there can be any number of things. COVID-19 was a roadblock for everybody. Like that, you know. You couldn't get anything going and things were still, hate crimes were still happening. And you know, you couldn't do your mediations or your, whether it was a school spirit or any other kind of conciliation was very, very difficult because everything was over video. And so the roadblocks, in some instances are communities that don't have the capability to communicate or the technology to communicate. You know, those are roadblocks.

Bill Froehlich  (01:25:28): So, can you give me a few examples. And you -. I've got a ton of great roadblocks here, or frustrating roadblocks is probably the better phrasing: timing, not wanting to sit down, trust, momentum, a parallel investigation, COVID-19. Can you take a couple of those and perhaps give me some ideas about how you would try to surpass or overcome a roadblock? So, for example, timing. How would you work through a timing roadblock?

Ken Bergeron (01:26:02): Well, timing is, isn't -. You have to know that if you go too soon to get people to talk, it can be too fresh. Emotions are still running high. Things aren't done. You simply have to do outreach and perhaps do an assessment of what's going on. You have to know when parties are ready to come to the table following a fresh incident. It's better not to go right away. Maybe give it a couple weeks. Maybe a week. But at least make contact when the event happens and let them know that you care. That you're looking. You touch base with law enforcement and say, you know, you you're here and you can use CRS, we can help you. And you do that to both sides. But if it's too fresh and a lot of legalities are still up in the air, it may be too soon. And you have to know how parties are able to move or whether they have the capacity to move at all.

Bill Froehlich  (01:27:25): Great. And I appreciate that. And I guess there's this tension also with respect to timing about it being too raw and the situation you described in the Michigan ,community or community in Michigan, where you had people on the ground demonstrating being destructive. And so you also, I imagine, have pressure to get in quickly in a situation like that, to calm, try to help do what you can do to keep peace in communities while helping the communities articulate their issues.

Ken Bergeron (01:28:00): Right. I think sometimes truth, as in the case of Michigan and so forth, the more factual truth that you have about an incident, the better you are able to put you in a position to be able to move it towards either, to move mediation. Once you've done getting past fallacies and rumors then, you know, people may be ready to sit down and talk about some substantive issues, or causes, or why they think it was caused. Or maybe simply to have a dialogue about, you know, the tensions in the community and how they need to be addressed.

Bill Froehlich  (01:28:44): So we've talked a lot about trust. I want to skip ahead to momentum. What are some strategies that you use to build momentum or maintain momentum with parties?

Ken Bergeron (01:29:02): To keep them, what it, to keep them at the table. To do whatever it takes to keep them at the table. It -. You can't -. Maybe, you know -. Your BATNAs, your WATNAs, that kind of thing. But you know, just to try and tell that it's in their best interest to really try to work things out once you've gotten started. Because, you know, once one party says "well, you know, I got a series of meetings that I have to take, and it's going to be three months before I'm able to come back. And I don't know if I can continue this." You know you want to be able to say "if you can't be here for three months, can you identify an alternate to work in your place? Or can you join mediations remotely or by a video?" That kind. But always to try to keep it moving. Because once you've lost momentum, one side will say "they're not interested. They don't really want to talk. They just came because you're here, you're with the Department of Justice. That's the only reason that they came." Because they're going to be gone three months; that's exactly what we've been dealing with for the last 10 years. So, yeah.

Bill Froehlich  (01:30:32): So you mentioned not wanting to sit down and one of the next question I have for you is, did you encounter any pushback from any of the parties? And so, from my perspective, not wanting to sit down is a form of pushback about the process that you're offering. How did you work through pushback with potential parties?

Ken Bergeron (01:30:55): Well, sometimes you can get them to, if you can reorient them back to you. I know I mentioned a case with the Muslim community because one side met with the media and the other side didn't. They lost -. They thought I was being disingenuous and that even -. Because I let the city breach the trust. You know, it wasn't me. It was the city on their own, trying to speak to the media without the community knowing. But, you know, once you've lost that, it's hard to bring people back. And I think it was a power play. In some instances, people will use an injury to get out of a process altogether because they feel as if -. And what I found out in the Muslim issue was being able to hold, to disrupt city council meetings on a, whenever they occurred as opposed to mediating. In other words, rather than sit down and mediate, we want to continue to go to city council meeting and tell you how bad this city council person is because she's an anti-Muslim and she's a racist. That's what we want to do. We really don't want to mediate. We want her to leave her job and we want to put pressure on her to leave. So we don't want, we're not, we don't want to mediate. We want her to leave. So people have, you know, as much as they will try to tell you they want you to help them mediate. They're going to use you for whatever purpose they want to use you for. And you have to be prepared for that. People will lie and cheat <laugh> to do everything that they can to get some position of strength or some, you know, to get their way over an issue. So you have to be prepared to be hurt. Yep. You can't put your heart on your sleeve as a mediator either.

Bill Froehlich  (01:33:19): Be prepared to be hurt. Did you -. In talking about pushback, did you ever try to gain entry into a community and the advocate group said "hey, look, we ain't meeting with you for these reasons." Or perhaps law enforcement said "look, you're from DOJ. You know, we don't want a pattern in practice investigation." I know that's not what you do. But do you ever get pushback from the parties that said "look, we don't even want to engage with you."

Ken Bergeron (01:33:50): Well, I've had law enforcement that said that they didn't want be there because they didn't want a pattern practice investigation. They didn't want a consent decree. Exactly. <laugh> But they wouldn't tell it, tell me that to my face. And yes, I did have communities that didn't want me there because they thought that I was law enforcement and because I was with the Department of Justice. And even though you can present yourself as a person of color, it doesn't matter because all they will see is Department of Justice. So, your identification, your racial identification, doesn't give you any particular entree or advantage just because you're trying to win a party over -. As much as they, if they feel as if they, if you are representing someone. For example, I know that in some instances, Black Lives Matter did not, does not trust the Department of Justice. And so, when I wanted to talk to them, or maybe even broach mediation with them, they weren't interested in talking. They might listen to what I have to say about some marshal training or they would allow me to monitor an event, but they certainly weren't going to sit down and with law enforcement, because they just did not have any trust for the Department of Justice.

Bill Froehlich  (01:35:26): I'd love to hear, spend a little more time on that. How did the changing nature of the civil rights movement, the evolution of Black Lives Matter for example, how did that impact your work at CRS?

Ken Bergeron (01:35:40): Well, the civil rights movement changed from being leader centric with Dr. King and maybe through the black power movements of the, you know. We went through the sixties and seventies holding, sixties, holding onto the civil rights movement and, you know, leadership from Dr. King and Jesse Jackson, for example. And then moved into the black power movement where it was really kind of moving towards economic empowerment. And materialized and kind of a plethora of leaders who were bringing different things forward. And then as time went on, as we get into the two thousands, then you work, start working with, well, it becomes a leaderless civil rights group. Which is what Black Lives Matter is. In fact, there are leaders, but they will tell you that the local factions run different things. The only consistent network of leaders that I've dealt with was the NAACP. You have -. I had one, several instances, where I've had to work with certain other groups. I don't want to name everybody. But, they did have leaders and but, I guess the type of leadership and the objectives of leadership changes. The -. Once you start to see that there is a use of force, a pattern of use of force by law enforcement against black males, then collectively there is an impression that law enforcement has been doing this since slavery and they're going to continue to do it. And so, you know, the same, it's almost the same. You're dealing with issues that relate to building trust on community policing. Building a sense of community where there is no sense of community. Trying to get people to engage in trust building dialogues. Trying to allow people to exercise the first amendment rights and be heard. But ultimately, trying to get them to sit down at the table to exercise first amendment rights and build on the constitutional values that we have in our democracy. It's important to get them to build on relationships so that we can keep government together, or a semblance of community together, and safety. If you don't have safety you can't have community. So CRS plays a vital role in that. And like I said, people will just continue to use you for whatever reason to usurp, you know, your legislative mandate. But you're still a peacekeeper at the end of the day.

Bill Froehlich  (01:39:07): What -. Particularly you mentioned BLM as leaderless, generally speaking. How does that affect, specifically the leaderless component, how has that changed your work? How do you identify people to meet with for a mediation session or an assessment, or otherwise? How do you go about that?

Ken Bergeron (01:39:32): They are still members of the community and the way that you go around that is by using the community leaders who have relationship with them. And that might be an elected official, or there might be ministerial alliances in the black community, or priest in the Latino community, or there might be a neighborhood coalition, or a congressional person. It could be -. There are a number of other ways to bring people to the table. Because once the leaderless organization starts to see that this community is meeting with you, and meeting with the mayor, and law enforcement, or the school district, then they want to get on board. They want to have their voice heard. So they're going to find somebody, some way, somehow to get their voice heard and put their person in that meeting with you. And that's generally how they, they kind of come along because they don't want to be excluded. Yeah.

Bill Froehlich  (01:40:44): Thanks for that. I want to go back to the question about pushback. You talked about parties engaged in the process, or who you hoped to engage in the process. But I wonder, did you ever get any pushback in the communities you were in from outsiders? From individuals who weren't involved, whether it's the media or chamber of commerce who might not have been involved? I don't know. Did you ever get any pushback about your work from those outsiders who weren't involved in a mediation or conciliation?

Ken Bergeron (01:41:14): Yeah. Perhaps the worst was being maligned on the internet by a hate group in that Muslim case, the RLUIPA Muslim case over building a mosque. I was, no, I was -. My character was assassinated in the media, on social media, by then. But you know, that was a tactic that they used to discredit me and to try to get people not to trust the mediation process, because they didn't want a mosque build in their community. And they felt as if, as a hate group, that they could do it through social media.

Bill Froehlich  (01:42:05): Yeah. So they used social media to target you specifically, to decredit the mediation or conciliation process that was taking place. How did you, how did the parties respond to that information?

Ken Bergeron (01:42:22): I pretended it didn't happen. I didn't even talk about it.

Bill Froehlich  (01:42:25): Did they ever bring it up?

Ken Bergeron (01:42:29): Yeah. They knew it. But the fact that I didn't bring it up, didn't give them the reaction that they were expecting. Because the more you react to something, the more value you give it. And you know, by not reacting, I just said, you know, what's more important is to keep this mediation going and to help both sides realize the civil liberty that they are supposed to be upholding. Yep. And good government.

Bill Froehlich  (01:43:10): We're going to have a later question about social media. So we're going to come back to that, but clearly this is one way that has impacted your work. That's for sure. So what role did the traditional media play in in your work, if any role?

Ken Bergeron (01:43:30): Traditional media serves CRS still to this day in touting the community and its successes in either helping to form human relations commission, police advisory commissions, mediation agreements, anything that helps to promote some healing in a community. And notifying all of the residents of the community that something has been done to solve the problem, to heal the hurt, and the Department of Justice community relations service was instrumental in bringing that about. Helps CRS. It, you know, it's not you know, we are -. We don't talk to the media anymore. But if the media does a media report, that's going to, you know, expose the work that CRS did. I mean, that's invaluable.

Bill Froehlich  (01:44:29): What -. You said anymore. "We don't talk to the media anymore."

Ken Bergeron (01:44:36): We, gosh, after some, there, certain -. I don't know, it wasn't me, but there was some conciliators who may have said a little bit too much during some of the media, you know, when you get in front of a camera, or you say certain things and they are not correct, or they create exposure for the department or some reason that the Attorney General or the US Attorney now has to come back and clean up. Those things are not good. So you -. We were told after some of those things that occurred, I'm not exactly sure who or when, but you know, you don't talk to, as a conciliator we are not talking to the media anymore. So. Yeah.

Bill Froehlich  (01:45:27): So, I'm going to go back to that social media question. So the social media issue. You mentioned this one example where a hate group targeted you on social media during the mediation conciliation of a mosque in the community. What other roles did social media play in your work as a mediator conciliator?

Ken Bergeron (01:45:58): Well for community tensions -. As a mediator, I'm not so much per se, except if it is using social media to do research for on an issue or bringing some factual information forward. You know, for me or to guide communities on where they can go and find some information through social media or social media platforms. As a mediator, you can use certain social media platforms to find out about protest, about tensions, about how people are reacting to a particular issue. You know, you can use the platforms that are interactive, where you are talking back and forth with them. But CRS generally has been dissuaded from interacting on those platforms because it has the appearance that you're investigating. So if I go on a Native American website and I show up as a CRSer, then why am I there as particularly surrounding an issue in a Native American community? Am I spying on the message? Am I trying to figure out what's up? So you can't really get engaged in a back and forth. And so I don't really have a social media site.

Bill Froehlich  (01:47:50): Let me try to understand that a little bit further. So you would use social media. So for example, Twitter. Would you use Twitter? Or what site would you use?

Ken Bergeron (01:48:00): I would hashtag a particular issue or location. Just to find out about the tensions. But I would not communicate on that platform or join that platform.

Bill Froehlich  (01:48:19): I see. I see. So you would go to Twitter website general, look for a hashtag like hashtag Black Lives Matter or hashtag, I don't know, Oak Creek Wisconsin after the -.

Ken Bergeron (01:48:35): Or a synagogue, or a mosque, or yeah. Or anything, it could be anything. But you're simply just kind of searching out to see what is being said out there.

Bill Froehlich  (01:48:45): I see.

Ken Bergeron (01:48:46): You're not digging. You're not investigating. God forbid, you're not talking to anybody on there either. So.

Bill Froehlich  (01:48:53): Okay. You're just observing, much like you would do at a demonstration that's actively taking place.

Ken Bergeron (01:48:58): Much like you would do if you were looking at CNN.

Bill Froehlich  (01:49:01): Okay.

Ken Bergeron (01:49:02): Same thing. Or MNSBC. You'd be just looking at, you know, monitoring the information that's coming off the media. Now you're monitoring the information that's coming off the social media platform.

Bill Froehlich  (01:49:14): What other, or were there any other -. You actually conveyed a number of opportunities of social media. Were there any other challenges that social media created for you as a mediator? Obviously you've mentioned the one issue that could happen to any mediator at any time.

Ken Bergeron (01:49:31): Where mediation is being discussed on social media and to -.

Bill Froehlich  (01:49:38): Did that happen in any of your cases?

Ken Bergeron (01:49:41): No. Because in the ground rules I specifically say we are not talking to the media. We are not talking to social media. Please don't post or anything like that. But you know, there's always a potential for that thing occurring. But you have to be aware in mediation as a mediator, not just CRS but as a mediator period, that people can use social media. And once they start putting it out there, then you know, you're losing confidentiality. It's breached. So.

Bill Froehlich  (01:50:14): That's right. That's right. So we were talking earlier about pushback. Did you ever receive pressure from other agencies to quote "stay in your lane?" Perhaps even from other parts of DOJ, or state or local officials?

Ken Bergeron (01:50:38): Well, Not directly. Most of the US Attorneys that I've talked to welcomed our services. But I had been told through leadership in some form or another that we should not get engaged because the US Attorney doesn't want us there. Or to have the appearance that DOJ is being duplicitous. Or there's too many DOJ agencies. Or they don't want to be confused with CRS and the US Attorney's office. Or -. I had one instance where the FBI asked to proceed with caution until they had finished their investigation. But the good thing about them was is that they would call you back and say "well, you know, we're done now. You can do whatever you want to do and if we can help you, you know, we will." So. Yeah.

Bill Froehlich  (01:51:48): Yeah. Okay. So others wouldn't do that necessarily. Appreciate that. So it sounds like when you did face pressure to stay in your lane, it wasn't usually directed at you. They would call the director or regional director and say "hey look, here's this scenario." And then you'd get a call from headquarters or your regional director that said "hey, we need to, you need to step out for a minute or back off for X, Y, Z. Or I want you to know -." But did that ever come? "I want you to know that there's some folks who don't want you here, but you should still proceed." Did you ever face that type of tension from leadership?

Ken Bergeron (01:52:28): No. No. I really, I don't think I really ever had people that said that they didn't want me there, per se. Well, except in the cases where like law enforcement didn't want you there because of a, you know, potential for a consent decree. Or you know, people didn't want you there because they had alternate, you know, alternate reasons to want to engage or to continue to engage in demonstrations. So. Yeah.

Bill Froehlich  (01:53:13): Well, Ken, it's about three till noon or one o'clock in Eastern time. So I'm going to hit the stop button on the recording. But I first wanted to thank you so much for this second session.

Ken Bergeron (01:53:25): Thank you. Yeah.

Bill Froehlich  (01:53:25): And for your time today.

Ken Bergeron (01:53:27): I enjoyed it. I enjoyed it. Thank you. Yeah.

Bill Froehlich  (01:53:29): Me too.