Mediator Interview Topic -

Silke Hansen

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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.

Silke Hansen

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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!

Silke Hansen

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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."

Silke Hansen

[Full Interview] [Topic Top]

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.

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