Question:
Is there anything else that you try to do in the initial meeting besides finding out what their view of the issue is?

Question:
How did you "ferret out" the issues in the case?

Question:
Can you briefly tell us what the other interests were for the groups besides the businesses?

Answer:
Well customs, like cutting in line at the food store, that irritated a lot of people. The Vietnamese supposedly saw all the options, and the best option for them was to cut in line.

Question:
When they understood how their behavior was influencing the wrong kind of population, were they willing to change?

Answer:
Yes. Through education and law enforcement. Because law enforcement was ticketing them and costing them thousands of dollars in fines, and confiscating whole boatloads of shrimp that were caught illegally. In this community the Klan had announced a huge rally, and we helped the community get together to have their own rally so that they would be protected and not get retaliated on. We had spokespeople for the business community, the clergy, the educators and other sectors. When we had the community rally there was a lot of protection, we had plainclothes police officers and uniformed police officers. It filled the school auditorium and the Klan was there with their sympathizers. After the dialogue, discussion, and presentations, the city council voted to pass a resolution. It got coverage, and the citizens took the town back. I just helped the community to use all of its elements.

Question:
Did the main group or the majority group make any concessions at all? It sounds as if the Vietnamese minority community adapted to make adjustments to accommodate the nine hundred other.

Answer:
We wanted to buy time that the Vietnamese would get to know how to do business and how to live in Texas. The American way let's say. And the locals would get used to the Vietnamese being amongst them. You go there now, the honor students in the schools were all Vietnamese. They were getting all the awards and getting scholarships so I think it was a matter of both sides understanding each other through that period. And we were the catalyst to make it happen and help the community realize what it was facing, and what they could do about it. They decided what they needed to do and they did it. We just kind of helped them along the way.

Question:
Was the KKK involved in this process?

Answer:
Yeah, they were. They came to some of the meetings.

Question:
Was that the sympathizers or the KKK?

Answer:
The KKK itself did come. They weren't wearing their robes while they were at the meetings.

Question:
What was their dialogue? what were they saying?

Answer:
First of all, that the Vietnamese were fishing illegally but the government wasn't doing anything about it, they weren't enforcing the laws. And because they weren't enforcing the laws, the Vietnamese were taking advantage of the locals' situation and the government was giving them all this money so it's an unfair advantage and so the Klan was out there to help the locals fight that. They were protecting the local community and its way of life.

Question:
Did you ever find out how they became involved?

Question:
No, I don't.

Answer:
Well there's a union. They don't collect the money from the union members. Rather the city, or whatever they're working for, pays the union, and the city collects the money and gives it to the union, right? Or the company they're working for does this--that's what you call dues write-off. That's a withdrawal from your paycheck of the dues which is turned over to the union. The city refused to give a dues write-off because they refused to recognize the union.

Question:
Because?

Answer:
Well, that was just their attitude, to not recognize a union. They didn't want any unions there in city government.

Question:
You think it didn't have anything to do with the fact that the sanitation workers were almost exclusively black?

Answer:
We don't say, "Figure out what your goals are." Flip that over and say, "Identify what the issues are." And that's the next phase. There was a guy who wanted to know how I got involved in the Justice Department. And I told him, "I'm not the issue." You have to identify the issues. In the meantime, you're developing relationships.

Question:
The first issue is historical?

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

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

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

Question:
Again going back to what you were telling people before you brought them together. You said that you wanted to mediate the university's thoughts on this incident, but did you tell them at that point that you had a broader interest too, or did you bring that in later, or did it just happen naturally?

Question:
How did you get that realization? Did they say something to you? Was it your insight?

Question:
Haven't you run into situations where the establishment side (I'm assuming that it would occur more on that side) says, "No, there is no problem"?

Answer:
I can remember one small rural community near an Indian reservation where I was talking to an institutional person, and at first I thought he was talking "tongue-in-cheek". He was saying things like, "They are all lazy, and just living off government funds. And they are all alcoholics." I suddenly realized this man was dead serious! I mean, totally serious. He had absolutely no expectations for these children, so it was no wonder that Indian kids in that school district were getting nowhere. I came back to that community later and tried to get in to see this guy's successor, but he wouldn't talk to me. "Don't come, I don't have to talk to you." He called my boss, and said, "Send Silke Hansen home." Of course, I made it clear that just because he chose not to talk to me, it didn't mean that I would disappear and fade into the woodwork. But I never met with him because he just didn't want to talk to the Federal Government. So it happens.

Question:
So what did you do then?

Answer:
In that kind of case I just make sure that the community knows what other options they have. I make sure they know that they can go to the Office of Civil Rights and the Department of Education. I tell them what state resources are available, too, and maybe help them identify their issues similar to the kinds of things I was talking about earlier. I help them figure out what kinds of things need to change in their community instead of just focusing on eliminating one particular person. But ultimately, in reality, I went on to other cases that were more ready.

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

Answer:
Well, for a start, you need parties that are identifiable enough so you can say "These are the sides." Sometimes that is not clear. Sometimes there is tension in the community, but it is hard to define who, exactly, the opposing parties are. Second, you need specific issues that are clearly-definable. One of the things that's difficult to mediate is, for example, if there is a court case and a community believes that even bringing the case to court was an injustice, or the disposition of it is not fair. Usually you can't mediate that. So in that case, I would look for ways to bring some healing, some communication, some positive interaction among members of the minority and the majority community. I'd just try to begin to get some common interests, some common goals to deal with race relations in that community in general, without going through a formal mediation process. Now, I'm one of those people who starts off every case initially by saying to myself, "Okay, how can I bring this to mediation?" It helps me from day one, minute one to have an agenda in my mind. As I'm working toward that, it may become clear fairly quickly that the case is not going to go to mediation, and that's fine. But if I start out thinking that it might go to mediation, I have a perspective to work from when I approach the parties. If that doesn't work, then I ask myself, "Is there some training we can do? What other kinds of assistance can we provide? Are there some documents I can give them, or maybe I can just facilitate some meetings?" or whatever. But usually, unless I am asked specifically to come in for some other purpose, I'll assume we're trying to initiate mediation. Remember the case I was talking about earlier, about tax day? In that case I was asked to come to facilitate the meeting. I ended up facilitating another one similar to that about a month later in the same community. And there were some great things that came out of that, so it was a very rewarding and beneficial event. But that would be an example of where I didn't attempt to go toward mediation, even though there were some pretty good outcomes that arose from that particular situation.

Question:
When we were off the tape, you started to tell us about the "two taproot" theory. Tell us about that.

Answer:
I heard this from Gil Pompa, so I refer to it as "Gil Pompa's theory" [Gil Pompa was a former director of CRS]. In essence, what he says is that in racial conflicts, there are two taproots growing simultaneously. One is a perception or belief of unfair treatment or discrimination. The other is a lack of confidence in any redress system. There is the belief that, "Even if I complain, it is not going to make a difference." And those two beliefs (or taproots) are growing in force, side- by-side. Then there is a triggering incident. Rodney King was a classic example. And that triggering incident then results in these roots really exploding. Now the reason that I said I have changed it slightly is because I can't really see roots exploding. So I have changed it to say that there are two fuses leading to a bomb, and those two fuses are constantly strengthening and growing in intensity. But even though these two fuses leading to the bomb are there and are becoming more dangerous, it's not until that triggering incident that the bomb explodes and you have violence. If you could have disconnected or defused either of those fuses, the triggering incident wouldn't have done anything. If people who feel they are facing despair had an effective redress system, you wouldn't get that tension. If you didn't have a perception of disparity in the first place, you wouldn't need that redress system. But with both of those growing in intensity, that triggering incident and it could be almost anything will then set it off. And then once you have that triggering incident, I think one of the mistakes that we often make in responding to that is that all we look at is the triggering incident. We try to resolve the triggering incident, and we totally miss all of the pieces of those two fuses. We don't even look at those fuses! But the fuses are still there, so unless they are dealt with, they are going to regroup after a while, even when people don't even remember the triggering incident anymore. So part of our job, if you are really trying to deal with and respond to a violent conflict, is to recognize what those two fuses look like. Because if you can't deal with them, another triggering incident is going to set it off again. With the Rodney King situation, if you remember the disturbances or "civil disobedience" or "riots" or "revolution" the semantics of what you called it became a very big issue those events occurred not when Rodney King was beaten, even though you would think that the beating would have generated anger. But rather, the incidents occurred when the redress system didn't work. When the police officers were found "not guilty", that is when all hell broke loose. The anger was about much more than the Rodney King incident, it was about these two fuses that had been growing. Rodney King was just a triggering incident that set that off. And you can look at other examples of that as well. But it's an illustration which makes sense, even when you present it to institutional heads; they understand the importance of addressing perceptions of inequality. Even if they think they are doing everything fairly, they realize that it is in their best interests to not have those fuses growing in their community. So I say, "Maybe what is needed here isn't labeling you as racist. Maybe what's needed is for you to have a better opportunity to explain to the community what you are doing. Maybe the community just doesn't understand all of the positive things. I can help you with that, too." But, having the illustration of the fuses is a good way to help people understand some of the dynamics of a community. If I ever get around to writing or becoming more re-aligned with academia, I would like to do some research, at least paper research, which either supports or kills that theory, because to me it makes a lot of sense. I would like to develop more material and resources which either support that idea or say, "Silke, you are out of your mind. That might sound good from Gil Pompa and apply there, but if you look at the broader picture, here is what really happens."

Question:
I am assuming that most of the time when CRS gets involved, it is because there has been a triggering incident...?

Answer:
Certainly if there has been a triggering incident we will get involved, but we also get involved before a triggering incident takes place. It is just as likely that there is, for instance, a community that's just frustrated and has nowhere else to go. Maybe that's because they can see that the lack of equity and the perception of discrimination is there, and they have tried some avenue of redress that hasn't worked, so they come to CRS and say, "What can you do for us?" And usually, especially if they're people that don't know us that well yet, but maybe just know the Justice Department, they will expect an investigation and fact-finding and some kind of order being issued. So we have to constantly re-explain how CRS actually works, but it's their one hope for resolving this, because they don't see any other options. Frequently, there is a triggering incident, but not necessarily. And especially in the case of people who already know us, maybe from a previous triggering incident, maybe they will call us and say, "Silke, or Rosa, or Phillip, we are facing such-and-such and so-and-so, and she won't listen to us, and this has been going on and something is going to happen if you don't come." I remember my very first time in a particular reservation I hadn't been in the region that long yet, and to this day I don't know where they got my name but they called me and basically said, "If you don't come" -- and this was a police relations issue "we are going to start marching in the streets, so you'd better get down here." And it sounded urgent enough so that I did indeed get down there. We ended up having a fairly lengthy mediation session that ended with a good agreement. So ultimately, in this case, they were trying to avoid a triggering incident, but they were concerned with what they saw as ongoing physical abuse by the local police of Indian citizens. In their mind, anytime there was an Indian apprehended, they had to take him to the hospital before they could take him to the prison because he was so badly beaten up; they always resisted arrest, so they just said, "If something doesn't happen here, we are going to have a triggering incident and we don't want that to happen. So Silke, it is all up to you." And I thought, "Gee thanks, I appreciate that."

Question:
Do you have any routine assessments or anything you do, where you go into communities and try to figure out how long these fuses are, or how quickly they are burning, however you want to use your metaphor? Do you go in and assess the situation without being called in?

Answer:
Well, I do try to find out how much support there is in the community for a particular perspective and for a particular perception. I do that partly to get a better view of what's going on, partly for practical reasons I mean, if we are supposed to be dealing with community issues and it is really just the Hansen family that doesn't like the way the local police captain is handling things, it is going to be difficult to handle that as a potential mediation or as a community conflict. So, just to see whether there is, in fact, a real community entity that wants to deal with this issue, because if there isn't, it is very difficult for us to do anything. So, it's really just to evaluate the depth of support and willingness to engage. I might find that everyone I talk to whether in the local restaurant or at the local Post Office or wherever agrees that such-and-such is a problem but no one really wants to do anything. Then my hands are tied, too, because if I don't have two parties with which to mediate, there isn't a whole lot that I can do. And in meeting with the institution... Now if that institution recognizes that there is some problem in their relationship with the community, they might want some training or some facilitation meetings, or some examples of how to do things, or approaches they might use with the police department or the school. And of course, we would be willing to do that. But, it's difficult if there isn't a critical mass, and it doesn't have to be a large mass, but there needs to be some core community base which wants to bring about the change. And the other reason that that "critical mass" is important is that those people are going to need to keep things going after CRS leaves. If changes are made in a community only because the Justice Department recommends them, there's a real risk of the changes falling apart once the Justice Department is gone. Unless you have a local body that is going to hold the right people accountable, there isn't a whole lot that CRS is going to be able to do in the long run.

Question:
Going in a very different direction now, let's talk a little bit about how you build trust with the people you are working with. One of the things that I am especially interested in is that you are a white woman.

Answer:
You noticed.

Question:
I did. But the people reading your interview won't know.

Answer:
Quick story: I belong to a church out in Montebello which is predominately African American; I am not the only white, but I am the exception rather than the rule. Anyway, our minister out there is African American as well, and he was preaching about race relations one Sunday the idea that color really doesn't matter, and how we ought to get along with everyone, and how inclusiveness is part of what we pride ourselves on in that church. And that's true. And he said, "You know, sometimes I forget that Silke is white," and I said, "Well, don't worry about it. Sometimes I forget, too." So it depends on the setting, it depends on who I'm talking to. Early on in some cases, I'll say, "Look, I understand that I am a white woman who used to live in New York. What do I know? So help me understand. What do I need to know to be able to work here? I don't try to pretend that I know what you are going through because I don't. Even if I do, I am not going to say that I know, because I recognize that I need to learn from you." And, most people appreciate talking to someone who doesn't think they have all of the answers. And again, I do a lot of listening. Time is no object. Those first few trips I schedule very few meetings, because I want people to have as much time as they need to tell me everything that they think I need to know. If they get angry, that is fine. If it takes a long time, that's fine. And if you want to beat up on the government, that is fine too. You know, I have broad shoulders I can take it. I also try to be very clear about what I can and can't do so that people don't have false expectations, and I think for the most part they appreciate that. "Now, here is what I can do and here is what I can't do." The other thing that I have found is that in many cases and particularly in some of these grassroots communities people just appreciate you returning their calls, not dismissing them, just acknowledging and validating their concerns. Even if I can't change the racism that prevails in a particular area, it doesn't take terribly long to have that common human denominator and get past the "Well you are white and I am not" or "You're Indian or you're black or your Hispanic or whatever, and I am not" phase.

Question:
What about building trust between the parties, how do you go about doing that?

Answer:
I think a number of different ways. If I can actually get them to the mediation table and get them to where they are actually listening to each other, then it is actually embarrassing how easy it is to reach an agreement among the parties. That's because in most cases, they have never really done that before. They have talked at each other and yelled at each other, and they've said things about each other to the media and so on, but they have never really listened and responded and then listened again. So once they actually hear what some of the needs and what some of the obstacles are that each of them faces, and once they talk to real individuals and not "those people" or "those administrators," it just comes to a whole different level. There are certainly cases where the two parties never get to a point where they trust each other; there are also cases where the parties agree to trust each other only because I'm there. Even in those cases, though, they each agree to do something and that is a step in the right direction. So, you know, I am not going to pretend that the parties suddenly become "good buddies" and live happily ever after just because Silke Hansen was in town. But at least they have grappled with one particular aspect of their conflict, and in that regard they have a better relationship than they had before. That's a step in the right direction.

Question:
Would you say that having trust between you and the parties is more important than having the parties trust each other?

Answer:
Ultimately, my objective is to have them trust each other, but I think it is difficult to accomplish that if they don't trust me first. I am the one who is trying to arrange the situation in such a way that they can trust each other, so I mean if I had to choose between the parties trusting me and the parties trusting each other, I would choose the latter, because that is, after all, what we are working toward. And although my ego likes being massaged as much as anybody's, I like thinking that people trust me. That doesn't do me any good, though, unless they ultimately end up trusting each other. But I think one grows out of the other.

Question:
Can you be an effective mediator if the parties don't trust you?

Answer:
I guess it depends. My immediate response would be no, but I guess it would really depend on why they didn't trust me. If there is just some hesitation at first about whether or not they can trust me, that's one thing. If they don't trust me for a particular reason, that's different. I think that if they have a particular reason that they might not trust me beyond, "Can you trust any white women?" it might be difficult. But if it's just, "We're not sure, but what the heck -- we will give it a chance," well, that situation has possibilities. I can think of one mediation in particular: The case was in court when I was contacted. The judge called me and asked and of course it was the one day I came to work in jeans if I could go to court that afternoon. I said, "Sure, no problem," and then I had to decide whether to go shopping over lunch or go home and change. I decided that shopping would be much more fun; plus, I was closer to the store than I was to home. So I went shopping so that I would look semi-respectable going into court. Anyway, I was ultimately asked if I would be willing to mediate this particular case. I had some familiarity with both parties I had, in fact, mediated a case in that community seven years earlier, involving some of the same people. I found out later that some of the institution representatives had felt a little bit as if they were forced into that first agreement, so there wasn't a lot of trust at that point on the part of the institution. They expected that I would bully them into an agreement; on the other hand, their only other choice at the time was court. The community wasn't very optimistic, either -- they didn't believe that mediation would be very useful with that particular institution, because the institution was too hard-nosed, racist and inflexible, so they had very low expectations. Nevertheless, when the judge asked the parties if they'd be willing to mediate, neither party wanted to appear to be the unreasonable one. So they both said, "Sure." That ended up being a fairly long mediation, but they did reach agreement. The attorneys then prepared the settlement agreement and so on, which was an outgrowth of the mediation agreement. The institution representative came up to me -- this was either near the end of the mediation or right afterward -- and said, "Silke, when we started I didn't have any confidence in you at all, because I had heard such-and-such. This really worked well, though, and thank you for helping us on this." That person seemed very positive and appreciative of what I had done during that particular mediation process, so it was interesting.

Question:
How many court-referred cases do you get?

Answer:
Not that many. I think that they are the exception rather than the rule. I have had a few others in which I've contacted the parties after their case was in court. In one case, the parties got a continuance from the judge after informing [her] that they were going into mediation. In another case, the parties didn't even need a continuance -- it was a small community, and the parties were pretty well-defined, so they were able to reach a mediation agreement fairly directly. In cases like those, I have always managed to let the attorneys write up the final agreement and settle it, because I figure it has to meet their standards at some point, anyway.

Question:
"They are getting paid for it, so they might as well do the work?"

Answer:
No, that is obviously not the main rationale, but it makes sense for the attorneys to word the agreement in a way that makes sense to them. Only they know how they're going to present it to the court and so forth, and so having them do the writing and such is much more efficient than writing a draft myself, only to have them redo it. I mean, they have the gist of the notes that I keep and the agreements that are reached during the mediation process, but they then fashion the final agreement. I review it, and if I think there is a problem, then we reword it. But as I said, that is the exception rather than the rule.

Question:
The next question that I have on here, we covered pretty well -- about what you actually do in the mediation meetings. But the one thing I wanted to talk about a little bit more was the extent to which you help the parties develop solutions. Or, do you really stand back and let them come up with their own solutions?

Answer:
No, I mean if I do think I might have a solution that they might not come up with, I try to frame it in a way that will ultimately allow them to take the credit for it. I don't want them to say, "Well, we did what Silke suggested." Because then, first of all, they don't have the ownership in it that they should. Second of all, if it doesn't work, it becomes my fault and not their fault. And so I think that for the sake of the agreement, it is better if they believe that this is something that they worked out and that makes sense to them. But if they are just struggling -- if I know that they're looking for a particular solution -- I will put it in terms of, "What if you....?" rather than "Why don't you...?" And I will try to just expand and put a different twist on something that they already have, rather than suggesting something else entirely. I certainly make it clear from day one that I am not there to tell them what to do; I am there to help them work something out, and you know, if during the process of doing that I have ideas of my own, then I'll throw those into the pot as well, but always in a way that allows them to take ownership of my ideas, so that they don't end up saying, "Well, let's do what Silke says." One of my favorite examples to give parties -- and again, if I do mediation training, I often use this one -- is the one with the girls fighting over the orange: One wants the rind for the cake, the other wants the juice to drink, so it looks like neither one can get the whole orange. Many times you'll hear that example stop there, though. There's more: The girl who got the rind -- if she hadn't gotten the rind, maybe she could have used vanilla flavor or almond flavor or maple flavor. The point is that she didn't actually need the orange; she just needed flavoring. And likewise, the girl who got the juice -- if she didn't get the juice, she could have had milk or apple juice or water or coffee in my case beer but she was really just looking for a beverage. So they fought over the orange, but the orange wasn't necessarily what would best meet their respective needs they just saw it that way. Part of my job, then, is to get the girls to see that the orange is not necessarily the objective; rather, I need to get one girl to recognize that she is looking for flavoring and then investigate all of the various ways that she might obtain that. Similarly, I need to get the other girl to realize that she's really looking for a beverage and explore the possibilities of obtaining that. Eventually, you may get to the point where the orange itself isn't wanted by either of them anymore, but their interests and their needs have been met, and I think that's what differentiates good mediators from outstanding mediators, if you will. It's that ability to help replace the rind with another flavoring and the juice with another beverage, because once the parties can do that, their options are vastly multiplied, because they don't even need the orange anymore. And they pay me to do this -- I love this job. I sort of get on my little soap box and I apologize when I do that but it really is exciting when people in conflict begin to see that there are ways of dealing with their problems that they haven't even explored before. It's pretty exciting.

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

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

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

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

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

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

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

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

Question:
And those three consultants met by themselves?

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

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

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

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

Answer:
Well, to some extent, the sovereignty issue that I was talking about before the reason that sovereignty is so important is to maintain identity. I don't think there is any group in the country today that is more concerned about having their entire identity stolen than American Indians. They really feel that they are under siege in many cases. Obviously, I can't talk for everyone there any more than I can speak for any other group. But I think there is a real sense of it being a struggle to hold on to their identity, and that's why sovereignty becomes so important.

Question:
Let's talk a little bit more about the issue of power disparity between the parties, and CRS's role as a neutral. Even though you say you are a neutral, you also, in a sense, try to empower the low-power group, do you not? How do you balance that?

Question:
When the Nubians initially came in, did they not want to be part of this community?

Question:
What were some of those issues, just generally?

Answer:
I'll just take it from the beginning, the recruitment process, which people are recruited. The allegation was that there was no way to attract minorities, or recruit minorities. Assignments, the argument was that assignments were made based on who you knew, as opposed to your skill level, and whites had almost all the good positions even though blacks needed these positions. Promotions, there were no blacks above the rank of sergeant. blacks were not given the opportunity to go to outside training. So we got with all the parties, they agreed to it, I then drafted out the ground rules that were going to guide the mediation and gave those to everybody. I got a tentative agreement from all of the parties, and then we set the date for the first get together. It was that first meeting that would be introductory, everybody was going to introduce themselves to everybody else, go over your ground rules, and get everybody to sign them, as well as make any changes that are necessary, present the issues and put them on the table. What we ended up doing was putting them up on paper on the wall. We met at the city hall and everybody said that was fine. One of the things that was interesting was that all these people had been together on another occasion in the past, because these were the same groups of people who negotiated. You could leave the contract in the department, and everybody knew everybody else. They knew each other real well. Actually Fred and I were the outcasts. The first meeting when everybody was together, we went over the ground rules, everybody signed off on them, we went over the issues, and then we decided that we needed to set up a schedule. When we were going to meet and what the process was going to be like. I explained what the process should look like. They said fine, we'll go with that. So we instituted a process about how the whole thing is going to flow and we set up a schedule. Basically the schedule was that we would begin meeting the following week, we'd start meeting in the afternoon, or late afternoon. We would go until 9 o'clock or 8 o'clock, something like that. But we could go longer, if there was a consensus, or if we were on a roll and the mediators said we need to keep going. I'm consistent about this. The mediator is the final word, on the logistics, on the ground rules-- you know anything that has to do with the process.

Question:
So, they don't have any input into the process?

Answer:
They can have input, and input was solicited, but the final decision is made by the mediator; that's just the process. So when a mediator says you're done talking, you're done talking. When the mediator says they're taking a break okay. I think the first time we sat down, we went 9 days straight. This thing dragged on for 8 months, now we had 27 issues. My recollection is that we came together, I think it was Tuesday or Wednesday, it was 2 or 3 o'clock in the afternoon. It was the first session. I don't think we ended until 2 o'clock in the morning. We came back together the next morning at 8 o'clock and we went like this for 7 or 8 days of straight, constant hammering at this. There were a dozen people around the table and sometimes we went up to 16 to 18 people, and we just kept going on and on.

Question:
Was that a good thing, or a usual thing?

Answer:
I've never allowed mediation to go on like that. We'd get on a role, you know, and not that we wouldn't necessarily resolve something but they actually got serious about talking about whatever issue we were dealing with, and I was just lucky to stop it, cause it kept moving, and nobody said, "hey, let's quit." We took breaks. We'd go eat dinner or something, but they were just a strange group of people. We had one attorney die on us, about the 4th month into this thing. He had a heart attack at home one night after the sessions. When we took a break it was never more than a week and the way the process would work is that we would put on the table issue x to start with that day. We could move to any issue we wanted to just based on how we were proceeding on a particular issue but when we were done with that issue we would have a tentative agreement on that issue. And so we would stop and take a break once we hit an agreement on that. I would type up the tentative agreement. We would run off copies so that everybody had their own. We would sit there and read it, and everybody would go through it. Once they were satisfied with it we would pass it around. We would have five signatures on five different pieces of paper so that everybody had an original thing and then we'd set that aside. It was a very definitive kind of process, but when you're dealing with that number of issues and that number of people it seemed to be the only viable thing. And the funniest part of this whole thing was we were down to two issues I think, and they weren't even major issues, one of them had to do with a promotion and I don't remember what the other one was and we had been going. After these long grueling days people would just start getting nasty with each other and it was the FOP that said we're not moving on this. This is it. Take this or just trash the whole thing and we're ready to go to court tomorrow. So then everybody started to position themselves and it got tense. Freddy and I took a break and we talked about it, and we said forget it.

Question:
Between yourselves?

Answer:
Yeah, this is Freddy and I. We said, "Forget it. These people would jerk us around and they think they can jerk us around. We're just going to close the mediation and go home." So we came back in and we asked them if anybody was prepared to move off of their position and went around the table and everybody said no. And so I said in that case we are turning in the mediation. We're going to go to the airport tomorrow because we were unsuccessful and we're going home. And we turned around and walked out of there. And the next morning we were both at the airport.

Question:
Oh you were actually going to go. I thought this was just a technique you used.

Answer:
No, we were ticked. We were done. I mean you have to know the history of what went on. And we were always nice about the whole thing. And we were done. We weren't going to do anymore. We were serious. We get to the airport and drop off the rental car and here come all these people running down the hall, wait, wait, wait. We can do this. We can do this. Partly because they didn't want us to go to the judge and tell them we hadn't done anything because we're talking almost eight months now we'd been at this. But we'd reached our end and so we sat down and three days later we had a completed agreement.

Question:
Now did the judge give you any time constraints for mediating the case?

Answer:
No, no. As long as it takes. See the judge didn't want to deal with it. Today Louisville still has internal problems. One of the guys that got promoted, a black guy was a real nice guy, but he got promoted way beyond where he needed to be and the pressures of trying to live up to that position was difficult. He went from a sergeant to a major overnight. And he thought that was great until he found out what it was like to be a major. And he didn't have the training. No one taught this guy how to be a command officer. The city didn't really give this guy any training. They said if you want to be it, fine you can be it, but we're not going to help you. I mean that was their position. And he ended up taking an early retirement leave. There was a lot of nastiness that came out of it and everything, but it was successful.

Question:
We're going to get to that part because there's a whole lot more detail that I want you to give me about that particular case there. Go back to when the judge said okay I want you to mediate it. Here are the parties. And you told me about the positions of the black officers of the community. They wanted different hiring procedures and things like that. What was the stance, or what was the position of the police department? Were they saying absolutely not, or what were they saying?

Answer:
The reason that the lawsuit was filed was because the city and the police department simply said we don't think we're doing anything wrong. The NAACP and the black police officers organization initially said it, and then they got the NAACP to support them and the Living Events Fund came in. If it had been just the black police officers and the Logan chapter of the NAACP and never went beyond that it would have never gone anywhere. It wouldn't have been mediated. But because they convinced the Living Events Fund to come in they brought their two lawyers from New York. There was a guy who was very difficult! Even his own clients wanted to kill him. This guy just had this attitude about him that was very disruptive to the process because everything he said was right. And he also had this, 'I'm from New York and I know all about it' attitude. And I don't know if anybody at the table liked him. That's an interesting factor in mediation. I prefer to do mediation without attorneys but you can't always do that. They can mess up a situation as opposed to help the parties. They even had their own clients just really going at the table.

Question:
What were some of the conflicts here? Obviously that's an example of internal conflict.

Answer:
It was almost all attitude. It was that, 'I know what is best for you' and so I'm saying that the police department has to do "X." And the black police officers we're saying "Well we don't have to go that far. That's not necessary. We can do this, and that's going to deal with the problem and that's going to get us where we want to be." And this guy is saying "No, that's not good enough. This is how it's going to be." Not this is a point for discussion. He was saying this is how it's going to be or we're going back to court. So we were constantly stopping and taking caucuses, you know breaking them into four different groups, because of the conflict between this guy and his own clients, the people from the black police officers organization. There never was anybody there from the NAACP, the local chapter. It was always the legal defense from the NAACP representing the black police officers organization. I remember the mayor's guy said, "look we're just going to leave and give you a piece of paper. You write out the agreement. We'll sign it in the morning." Just irritating. Everybody just lived with it through the thing. I mean eventually, I don't know, common sense won out. His clients would talk to him. His co-counsel was always talking to him. The mediators took him out and we'd caucus with him and tell him lighten up, lighten up, lighten up because you are going to screw this thing up. And everybody kept pounding at the guy and eventually just overwhelmed him I guess or something. You know you just want to kill somebody. And he had that attitude.

Question:
So you were telling me what the interest of the law enforcement was. They said that they had done everything.

Answer:
The way they assigned people was fair and equitable. They said that they had a good recruiting program. They couldn't help it that blacks weren't applying. They said that the reason that there were no blacks above the Sergeant position was because there haven't been any openings. They had an answer for every item that was raised and were comfortable with that. So that was their basic response and they tried through the negotiating process with the union to negotiate a process that they were accustomed to in the unions, but it was all about wages. They were negotiating the wages for the FOP. All these other issues came about and they thought they could deal with them the same way they dealt with the money issue and they couldn't. And that's when the lawsuit was filed. That's when the NAACP and the legal defense came into the picture and then it became a formalized structure kind of process. I don't think they'd gotten into discovery yet so this was brand new when the judge wanted to refer it to us. And there's an advantage to that because at least they hadn't really had an opportunity to sit down and clarify positions on the lawsuit.

Question:
Did either of the parties, or any of the parties involved ever ask you to do things that you were just unable to do and how do you handle such a request?

Answer:
They would try and I really can't think of anything specific but obviously they would try to get you to do things. The way that I deal with that is through establishing the ground rules and the working relationship that's going to occur between the mediators and the parties. In that process I make sure that the ground rules (without being over-burdensome) are clear and definitive as to roles. And I let it be known that that's it. Don't ask me to do something that isn't on this page, you know that kind of thing. Here's my role and I'm very clear. One of the things that I think is actually critical to mediation is that the parties know exactly how their mediator views mediation and how he runs the process, and where the start and stop points are. I'm real adamant about that. Because I communicate that up front clearly and we put most of it on paper and they sign it, usually there's not a problem. It doesn't come up very often that they ask me to do something that isn't on the paper.

Question:
So you come to the table with that in mind and say hey you're signing off on this process we're done with that.

Answer:
We've set the ground rules-- that's it.

Question:
Could you give us an idea of what the basic ground rules are? How would you characterize them?

Question:
Tell me what the issues were.

Answer:
Something like the Klan wanted the Vietnamese to get out of town. Essentially that they should leave or they should limit the number of boats on the water.

Question:
How did the Vietnamese respond?

Question:
What process did you use to identify the underlying issues in the overall conflict?

Answer:
The funniest thing about working in this sphere: You really don't take a lot of steps, you just know. You make judgments based upon what you know to be so, and then you go around meeting with people. They tell you, "Oh, so-and-so over there is out for personal aggrandizement." He may be, he may not be, that doesn't really matter now. What matters is the position of the city, and how I would want to address that. You see them, you identify them in your mind, as long as they're not causing that much of a problem, you go ahead and do something about it.

Question:
As long as the underlying issues are not causing a problem. We're speaking about Memphis. The issues that you found very prevalent and important were they the same issues that groups considered important?

Answer:
Quite often they were. For example, after Martin was killed, Baird Rustin....do you know who I'm talking about? Baird Rustin came down to organize that peaceful march that Martin had come back to Memphis to do, but was killed before he could. Baird was a great master of demonstrations. He's the person who organized the march on Washington. He was a great tactician, so Baird Rustin came down and took charge of organizing the next march. When Baird walked the route of the march, he said, "Oh no, we can't march that way." Number one: They had a court order to deal with, because the city went into court and tried to get an injunction against him in another march. They didn't get the injunction, but they got a bunch of restrictions on the march. One is they could only use one half of the street; another one was that the march had to take place between ten and two; another one was the route of the march. When Baird had walked the route, he was that much of a tactician. Most folk would mark from here to here; he would walk it and see what the hindrances and encumbering things would be and he said, "Going that way, we have to pass two buildings in demolition and one building in construction. We don't want young people to be tempted to pick up rocks and bricks to throw. We don't even want to go that way, we want to go another way." But the court order was to go that way. And then the other was a problem too. Do you know how long it would take to process ten thousand people, marching four or five abreast? We couldn't even go downtown and get back within the four-hour span of the court order. So the court order needed to be changed. So then they turned to me as the mediator, and Baird said, "Mr. Sutton, somebody's got to go before the judge, and tell him what the encumbering things are as they relate to a peaceful march." Under usual circumstances, an attorney would go down and make that appeal, but that takes too long. The attorney would have to make a brief, and the judge would have to study the brief, and then come up with an answer. He said, "That would take three or four days, and we don't have that. Would you go down and just talk to the judge, man-to-man about this situation?" I agreed to do it, so the next morning, when the Justice Department agencies got together, as we did everyday, CRS, CRD (Civil Rights Division), U.S. Attorney, and F.B.I., all got together the next morning. I reported this to them. So the guy from the Civil Rights Division jumped up and said, "You can't do that!" I said, "What do you mean I can't do that?" He said, "The Justice Department can't be in the position of asking a judge to change his order." I said, "With the exception of the F.B.I., the rest of you are attorneys and I can understand your great fear of the judge. But a mediator does not have that kind of fear, at least this one does not, and I shall go." He said, "I'm the highest ranking member of the Department of Justice here, and I direct you not to go." I said, "You're getting things mixed up." He said, "What's that?" "You are the highest ranking person from the Civil Rights Division, I'm the highest ranking person from the Community Relations Service, and I promise you that the Community Relations Service would not tell the Civil Rights Division what to do, and the Civil Rights Division will not tell the Community Relations Service what to do. There are only two people telling me what to do and that's Roger Wilkins, Director of the agency, and the Attorney General himself. He said, "I shall call the attorney general." I said, "Call whoever you want to call." I left the meeting to go to meet with the judge, but on the way to meet with the judge, I called Roger. I said, "Roger" and he said, "Hey, Ozell, how's it going?" I said, "I say to you," and I'm always doing this, "you remember the scripture about how the lady said, I will go and see the king and if I perish, I perish?" I told Roger what I was about to do. I told him I was greatly upset at the Civil Rights Division, that he would probably hear about that, but that, "the only thing I need to know, is whether that disturbs you or not, Roger." Roger said, "Ozell, if you think that's what ought to be done, then you do that." That's the way Roger was. "You are a seasoned mediator, one of the best we have, so you go ahead and see the judge." I went to see the judge, and the judge received me, very politely, and I explained to him, I said, "Judge, marching four or five abreast, it would take more than five hours to process ten thousand people. Had you considered that?" He said, "The city does not want them to take the whole street." I said, "Judge, you know what that is. When the American Legion comes here, it takes the whole street. When the Shriners come here, they take the whole street. And they don't even get a permit. They just go out there and start marching. I used to be a commander of a protest group and when we came into town, we just went out there and start marching. We took the whole street and nobody said a word to us. This is selective law enforcement, which we cannot do in this situation. The city would not drive for three hours and they're going to need the whole street to do that, even for the city's sake they need the whole street." The judge agreed. Then I told him about the difficulty that they didn't want to march down that street, unlike it was in the other march. "Even the signs are not going to be on sticks; they're going to be on strings hanging on their necks, they're trying hard. We've got to help them." He agreed. He agreed to all that I asked him to do. When I came back and told Baird and the ministers and all the leadership, (they met every morning), that the route had been changed and that the judge had agreed, they were satisfied. I met with the Justice Department officials. This guy who was daring me to do something, he said, "You know, Ozell, you are a peculiar guy." I said, "There's nothing peculiar about me." I did that as a fun thing. He said, "You have a lot of audacity." I said, "I'm audacious. I'm more than audacious, I am bodacious." Bodacious is being brave and audacious. I've been out here a long time, and sometimes you have to take a risk, even with yourself. If the issue's big enough, you even risk your own self and your own career. I'm not out here playing, and what they said made sense to me. And I didn't have any reason to fear the judge. I'm just a laborer, I'm not a member of the court system. Judges are human beings, and I wanted to talk to the judge not in legal terms, but in practical terms.

Question:
It sounded like you took the interest of the parties.

Answer:
Yeah.

Question:
And the interest of the city, which is what a mediator would do?

Question:
Okay. How did you go about identifying the underlying dispute in a conflict?

Answer:
Each was making up their laundry list of the things they wanted to bring up at the table.

Question:
That translated into their interests?

Answer:
These were their interests, and they covered the waterfront. They were very serious ones, primarily from the racial minorities, related to disciplinary actions.

Question:
That seemed to be racially oriented?

Question:
Changing gears, going back to the assessment phase, how do you go about identifying what issues are key? Is this something that you leave to the parties, or is this something that the mediator will play a strong role in doing?

Question:
Well, once again going back to the University, tell me about the dynamics at the table?

Question:
You mentioned at one point that the issues that you thought were the critical issues often turned out not to be. How did you decide what was and what wasn't critical?

Answer:
Just through questions, discussions, and asking them what is important to them. What is really important. People say we want justice, but doesn't everybody want justice? They said they're engaging in that activity because they want justice. So what I've done several times is kind of turn that around and instead of talking about justice, talk about injustice. So, say there was a police situation with a community. What is unjust that they're doing? Well they used excessive force, that's unjust. They're not hiring enough minorities, that's unjust. They are ticketing us more than others, that's injustice to them. Let's say we have five categories or five issues that define the injustice, so if you take care of all those and you come to an understanding or there's progress made on those five, then they have justice.

Question:
And you do this by asking questions, I gather....?

Question:
Now going back to this case, how did you identify what all the issues would be?

Question:
So what were the issues?

Answer:
Well, the American Indian Movement had an agenda. It ranged from recognizing Wounded Knee as a historic site, to going to Washington to renegotiate the treaties, to have Congress address the issue. They wanted to have the white House meet with them and talk about these issues. And they wanted the government to investigate the civil rights violations under Wilson’s regime. There were subsequent negotiating sessions, mostly in the meeting house in Wounded Knee.

Question:
Now they set the agendas themselves and ran the meeting themselves?

Question:
We talked yesterday about the theory we developed, based on talks with a lot of people, about what we call intractable or resolution-resistant conflicts. We came to the conclusion that conflicts were more resolution resistant if they involved very high stakes and distributional kinds of questions. They were also more resistant if they involved fundamental moral differences, or what we call domination conflicts, pecking order conflicts, or identity conflicts. All of these tend to be involved in race issues. I threw this out at you yesterday, and you said that the factor we hadn't been thinking about was the need for relationship. If there was a need for relationship between people, then they would be willing to negotiate on those things. Are there other factors we're not thinking about?

Answer:
Another factor is the party’s or the individual's ability to look beyond their current power position. If they can't perceive themselves in an honorable way, beyond this entrenched position, then the issue's not negotiable. That's why I always ask, "What is in your interest?" If I can't help them identify an interest that serves their needs beyond this entrenched position, it won't work. I can explain to them, "You have the power to direct authoritarian decision making on this plan, but what is it getting you? What might happen if you're willing to move in a different direction? Is it worth that?" If they say it's not worth that, then I'll tell these people what to do. If they don't do that, they're out of here, they're not going to negotiate. Again, at that point, I'm not looking for them to understand the other party's interest. I'm looking for something to catch their interest. So if they're so entrenched that they can't see hope of personal interest served -- beyond this entrenched position -- they're not going to move out of it. That's when I would say, "Call me."

Question:
You mean if they change their mind?

Answer:
Yes. I think one of my propensities was to keep moving beyond their real interest. They would have to be really overt to me and say, "Go away." As long as they just danced around it and kept the door open, I just kept moving forward. Generally that worked out, although sometimes they slammed the door. I think that's one of the skills of the mediator, to understand whether or not it's mediatable. If you can’t help that party see beyond the entrenched position, then it's not going to be mediated. I use it in the 40 hour mediation class. For example, one of the barriers may be authority. It's a big rock. Here's the mediator, they're the fulcrum underneath this lever. As the mediator, I'm trying to get this party off of its entrenched position in order to see the benefits of the mediation. If I can't come up with something to put on the other side, then it won't level out and it's not going to work.