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  • Endnotes for Principal Edwards' Scenario
    this particular problem A jail suicide is what they re complaining about but there may be underlying issues in police community relations that led up to this Why don t you believe them when they tell you this was a suicide There s a lack of trust So what engendered that lack of trust are the issues you may want to look at Nancy Ferrell Full Interview Topic Top 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 The parties decided That was always the surprise The incident with the school is a good example As much as it turns your stomach the kids didn t do any direct harm to anyone with that fraternity party What came down to be more important to those minority students was the fact that they weren t getting a fair chance at a fair education If we had only addressed the frat party we would never have gotten to the real problems that they were having I had no idea going in and came out knowing that we created an environment for them to feel safe Efrain Martinez Full Interview Topic Top Let s talk about identifying the issues and the conflict You said last time you basically talked to everybody and asked them what s going on I imagine that you sometimes get a superficial answer and then there s a need to dig deeper to get more of the underlying issues How do you go about doing that 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 Answer Yes Will Reed Full Interview Topic Top 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 Answer Well yes The first issue is historical You ve got initial hostility between whites and Indians so you know that goes back to forever That s a given you put that on the table The next things you put on the table are the issues of economics employment housing and discrimination and identify which one of these things caused the problem With minority communities across the board even today you can almost always go back to those issues of deprivation in some way and form You realize that so you pull up another issue and the next issue could be Indian treatment in the criminal justice system In this particular case was this an act of suicide by this young man or was it brutality on the part of the jailers or the police That s an issue you ve got to identify Efrain Martinez Full Interview Topic Top I went to the business leaders the chamber of commerce people and asked What is this costing you It s costing a lot of hotel reservations People that were going to have conventions here have canceled Fishing is quite popular around there so some of the fishing tournaments have been canceled The downtown shops are losing money because that s where some of the Klan rallies have been It was to their self interest to get involved to do something about it So going back to the self interest that conflict is bad business Racism that causes conflict is bad business And it s bad for the community business so what I do is get to the self interest of these different elements It would be to their self interest to get involved to fix the conflict It s like say a hand or a body you smash a finger well the whole body hurts not just the finger the whole body needs to get involved in fixing the finger In making it better for that one element it makes it better for everybody Communities work in the same way Question Can you briefly tell us what the other interests were for the groups besides the businesses Answer Political leaders want to be elected and they care for the overall community As for educators their classes were being canceled causing disruption in the schools it s not good business for them either Nancy Ferrell Full Interview Topic Top 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 Answer Well again it was as much a part of our regional interest as my propensity My propensity was to let that open itself up wherever it went Generally people will say that s just the tip of the iceberg That s just an incident The real issue is that we re isolated on campus we don t have any opportunity to serve our student government we have professors here and it just comes out So you either say well that s too bad good luck with that but we re going to deal with this incident with the fraternity or you can limit what they say and just limit the discussions to that I went into a small community in Texas and I can t even remember what the triggering incident was probably police use of force I d have to look back When I got there we were in a community center and there were about fifty people there I said Just talk to me What are your concerns Within about an hour I realized there were people there who were concerned about the school district the police department there were four different interest groups and I just divided them up in the room Everyone that s most interested concerns in the school district go in that corner Everyone that s more interested in police here city government here contracting here And just divided them up and it turned out to be a five prong community conflict resolution kind of thing So we were dealing with just about every major system in that city But I didn t know that when I got there Angel Alderete Full Interview Topic Top So we got them together again and the concerns were bread and butter You re beating us up and you re beating my kids up You re not giving us a fair chance That was a concern But employment the police department and the rest of the city aside from token employment had no people of color So that got bigger than just the cops beating my kid up Angel Alderete Full Interview Topic Top and their concerns were the usual ones No Mexican American teachers no coach for their basketball team they didn t have football Classrooms were in extremely poor condition It was one hundred percent Mexican Americans so you re just concerned with the Mexican American school group In fact the school district the city was maybe 96 Mexican American the rest were all white FOOTNOTE 5 Mediator Comments on Reframing Silke Hansen Full Interview Topic Top 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 Silke Hansen Full Interview Topic Top So one of the things that we did is to start off in very general terms talking about their hopes and priorities and expectations for the community We would ask them what a fair agreement in broad terms would look like to them As we discussed that there was the beginning of seeing that there is some agreement here We may have very different approaches but there are some common denominators there We didn t call it fairness at that time but that s really what we were talking about If we are talking about a fair system that would include the principles that everyone agrees to But I really do think that a mediator is going to get into trouble if they try to control whether or not an agreement is fair On the other hand I do think that a mediator has some responsibility to not allow a party to negotiate away basic civil rights Ozell Sutton Full Interview Topic Top Question Would you have said that to the white caucus Answer I made a demonstration with them when I got over there I said I ve been with the Justice Department a long time I believe like Langston Hughes Justice delayed is justice denied I m here from a different angle but you re talking about the same subject I don t wish that you sacrifice your rights I don t want anybody to sacrifice their rights But let s get onto it Here I go on another sermon but from a different angle Question So you reframed the issue for them in the caucus Answer In words that they could connect to Question That s an important piece the use of language as a trust building tool FOOTNOTE 6 Mediator Comments on Addressing Parties Concerns in Mediation Bob Ensley Full Interview Topic Top You mentioned a checklist is this a mental checklist that you have Answer A mental checklist yes Question And what s on this checklist Answer Who s to be involved certain time limits what goals and objectives did they set that were different than what you had originally thought of terms of Who else they are involving and any money that is involved Also what additional role is there for me What will I be able to do Who am I going to assist Am I going to assist a Human Relations Council or am I going to assist the people or do I assist them together It s much easier if we can work harmoniously with all the groups as they come together than to assist one over the other because it may appear as if we re taking a position with the Human Relations Commission and have forgotten about them being able to represent themselves and speak for themselves Manuel Salinas Full Interview Topic Top Did you design a plan for handling this Answer No really not Once they began to ask a few more questions though and the people began to ask questions or say we don t like this or that or the way the department has handled things before then the only plan that I had in mind was for me to be able to sell them on the idea that we need to know more and the way you re going to know more is through a police assessment I told them that we could handle that for them and bring that team together on behalf of the community and work with the chief to make sure that this is done And they thought that would be a very good idea since they knew very little about the department they thought this would be very helpful to them for the long range for later on So we had that done And the chief agreed on that He wasn t reluctant at all and that s one good thing about it Had we had a very stubborn chief of police it would have been more difficult There would have had to be greater protest and for a longer period of time The protest didn t last that long Things were beginning to move in the direction that the committee felt would be helpful The chief then was looking for something that would help him So it would help both parties FOOTNOTE 7 Mediator Comments on Fact Finding in Mediation Ernest Jones Full Interview Topic Top Question Now in this particular case mentioning that did you feel that the conflict became defined a little bit differently as time went on Answer No it was the same There were clear issues That s the one good thing about that situation was that the issues were pretty clear and definitive and the numbers were there The data was existed Question So there weren t any factual discrepancies Answer No there were a lot of discrepancies because people would express their position on an issue and over a period of time they came to distort the issue Question For example Answer They d make statements like a black has never held a position above Sergeant Well that s not true and the city could show that in fact they d had an assistant chief who was black They d had a black captain They d had a black major They had a bunch of black lieutenants Over the history of the department they d had these but what had happened is that the black officers just kept saying nobody has been above a Sergeant And all of a sudden that becomes the truth for them and it wasn t the truth Factually that wasn t the truth but for the black officers that was real it had just materialized to that point I could just cite that for a whole bunch of different issues from the cities perspective from the FOP s perspective and from the black s perspective This is just human nature We allow things to become something that they re not because of the emphasis that we place on it Question Now once the facts were actually given and provided did the other side accept those as facts Answer Well let s just take the one we were just talking about As I recall the response was something to the effect of well yeah we forgot about that but that was 30 years ago We re talking about today And that happened with those kinds of issues People reluctantly understand that the historical data is there because it s on paper and people can prove it But because they ve made that an issue and they ve stated their position somehow there s got to be some face saving taking place here and so we change the focus to today That s what we re talking about And that way everybody has saved face all the way around the table And that happens a lot and it happened a lot in this case Question So they didn t lose any of their validity Answer Their perspective was well we showed you It s incredible to me how childish adults can be I don t know why because I see it repeatedly day after day but it has a whole one upsmanship Well we showed you that you were wrong Yeah you did but you had to go back thirty years to do it It has that whole attitude So everybody feels that they ve made their point and now we just have to figure out how to get it down on paper That s the trick FOOTNOTE 8 Mediator Comments on Maintaining or Regaining Control in Mediation Julian Klugman Full Interview Topic Top Answer One I mentioned was the kid Question But what were the various approaches you used for dealing with that Answer I quieted them down You re teaching them you re a role model It s how do you deal with that anger I ve been in some very violent situations where you get angry your heart starts beating and your natural impulse is to lash out That s where training comes in Or if I m really angry or if the violence is really scaring me I take a deep breath and I psychologically step back a foot I wait until my heart stops pounding which takes about sixty seconds before I respond at all You can be angry but it s got to be controlled Listen to what the person s saying don t respond to the anger Don t be condescending don t be a smart aleck don t act like you re really afraid Don t be a psychiatrist but do take the person off the hook and depersonalize it And this is where the interracial thing becomes important There are differences between people and between groups and how they deal with anger Do you know the book that the white professor at the University of Illinois did about the differences in confrontation between black and white It s an excellent book you ought to read it You ve got a great difference in perception sometimes of what s happening I saw it in Palm Springs once Here s this nice sweet young white teacher and a black woman parent came out with a lot of anger which really wasn t directed at this woman The white woman started crying and the superintendent wrote a complaint letter to the Attorney General of the U S about the mediator Question How does the mediator deal with that problem Answer Well you re a role model you ease up the flow You might suggest a bathroom break Question Then you take the black person aside and say the reason she s reacting this way is because Answer No I would not presume to tell this woman she does not have a right to be angry This young white teacher you tell her it s not personal She was head of the cheerleaders and there were no black cheerleaders There was no prejudice involved of course but the Palm Springs high school did not have any black cheerleaders So they wanted some black cheerleaders and she had her own little kingdom of cheerleaders There are a number of techniques You break the flow you talk calmly you go onto another issue You assert control in the situation Question Going back to the anger management when things get really hot in a mediation how do you cool them down Answer Sometimes you can make a joke Everybody likes it when you laugh at yourself and make fun of yourself so you can diffuse a situation through humor One former CRS director used to draw cartoons Very good ones I ll show you I ve got a whole series of them He would sit there and he was like a professional cartoonist although he was a lawyer Question Break the flow Any other ideas Answer About how you handle it Ultimately you could adjourn the meeting if you had to or you could have a recess And then you talk to the person Stephen Thom Full Interview Topic Top What I told this principal was Do you know the players do you know the real players that were involved in this altercation She said Yes between the counselors and security we know who the players are I said Okay bring them in one by one Tell them you need their help Tell them I want to make sure that we bring this school back together and I need your help Will you help me You re the principal of the school And she said Oh yeah just bring them in one by one I said Yes see if you can get them to support you What happens if they don t she asked Keep them on suspension So I called her that evening and she said Steve every one of them gave their word It s amazing these are great kids I said Yeah they are Have you never met them before She said Now what do I do I said Ok they re keeping their word they re helping to keep things calm She said Yeah they are but I don t think I can just leave it like this I said Now that they ve made a commitment to you you can bring them together as a group So bring the Samoan kids in Remind them they ve already made their commitment that they ve individually given their word so that peer pressure doesn t take them to another level Then talk to them about how we need you all to control not only yourselves as individuals but also others to help diffuse the tension here Then bring in the other group and do the same thing So she talked to them and she said They all agree we re all on the same page Things are still okay Stephen Thom Full Interview Topic Top Do you have techniques you use for reducing tensions between the parties Answer Sometimes they get hot and I have to watch the parties and see what level of tolerance one has of each group I read the behaviors and decide whether to ask them to calm down Sometimes I call for timeouts and ask for caucuses There have been times where I ve said Wait a minute we need to review why we re here and what tone and ground rules we ve agreed to abide by If I sense some discomfort by some of the people I ll say By the behavior of the individuals there seems to be a need to take some of that tone out of here or Could we take a time out At that time I can meet with individuals to draw out that person and speak to that person directly and say You know you re creating a level of hostility Do we want to move forward in working towards a solution We re not going to cut you out of getting your voice and what you want to accomplish but the tone is going to possibly harden the other side so it depends what you want to accomplish here Think about that as you convey your issues You could be passionate but don t get to the point where you re so aggressive that it harms the process I think those are the kinds of techniques that I have used Stephen Thom Full Interview Topic Top The other thing I wanted to mention about tension is I think it s always good to bring humor I have a very light humor They always say something that you can play off on that you can stay within the context and still be light enough but bring enough humor to defuse some of that tension I think humor is a very valuable tool Some people know how to use it and some people don t It s tricky I know because you can get hurt with humor sometimes but I found humor to be a very meaningful way to relieve tension and a valuable one Question Do you have any examples or guidelines for humor Answer Well now you re asking me I can t tell jokes I can t remember Maybe the things that you

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  • Endnotes for Brian's Scenario
    interest too or did you bring that in later or did it just happen naturally Answer Well again it was as much a part of our regional interest as my propensity My propensity was to let that open itself up wherever it went Generally people will say that s just the tip of the iceberg That s just an incident The real issue is that we re isolated on campus we don t have any opportunity to serve our student government we have professors here and it just comes out So you either say well that s too bad good luck with that but we re going to deal with this incident with the fraternity or you can limit what they say and just limit the discussions to that I went into a small community in Texas and I can t even remember what the triggering incident was probably police use of force I d have to look back When I got there we were in a community center and there were about fifty people there I said Just talk to me What are your concerns Within about an hour I realized there were people there who were concerned about the school district the police department there were four different interest groups and I just divided them up in the room Everyone that s most interested concerns in the school district go in that corner Everyone that s more interested in police here city government here contracting here And just divided them up and it turned out to be a five prong community conflict resolution kind of thing So we were dealing with just about every major system in that city But I didn t know that when I got there Angel Alderete Full Interview So we got them together again and the concerns were bread and butter You re beating us up and you re beating my kids up You re not giving us a fair chance That was a concern But employment the police department and the rest of the city aside from token employment had no people of color So that got bigger than just the cops beating my kid up Angel Alderete Full Interview And their concerns were the usual ones No Mexican American teachers no coach for their basketball team they didn t have football Classrooms were in extremely poor condition It was one hundred percent Mexican Americans so you re just concerned with the Mexican American school group In fact the school district the city was maybe 96 Mexican American the rest were all white FOOTNOTE 4 Mediator Comments on Evaluating Parties Goals in Mediation Silke Hansen Full Interview 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 Silke Hansen Full Interview So one of the things that we did is to start off in very general terms talking about their hopes and priorities and expectations for the community We would ask them what a fair agreement in broad terms would look like to them As we discussed that there was the beginning of seeing that there is some agreement here We may have very different approaches but there are some common denominators there We didn t call it fairness at that time but that s really what we were talking about If we are talking about a fair system that would include the principles that everyone agrees to But I really do think that a mediator is going to get into trouble if they try to control whether or not an agreement is fair On the other hand I do think that a mediator has some responsibility to not allow a party to negotiate away basic civil rights Ozell Sutton Full Interview Question Would you have said that to the white caucus Answer I made a demonstration with them when I got over there I said I ve been with the Justice Department a long time I believe like Langston Hughes Justice delayed is justice denied I m here from a different angle but you re talking about the same subject I don t wish that you sacrifice your rights I don t want anybody to sacrifice their rights But let s get onto it Here I go on another sermon but from a different angle Question So you reframed the issue for them in the caucus Answer In words that they could connect to Question That s an important piece the use of language as a trust building tool FOOTNOTE 5 Mediator Comments on Addressing Parties Concerns in Mediation Bob Ensley Full Interview You mentioned a checklist is this a mental checklist that you have Answer A mental checklist yes Question And what s on this checklist Answer Who s to be involved certain time limits what goals and objectives did they set that were different than what you had originally thought of terms of Who else they are involving and any money that is involved Also what additional role is there for me What will I be able to do Who am I going to assist Am I going to assist a Human Relations Council or am I going to assist the people or do I assist them together It s much easier if we can work harmoniously with all the groups as they come together than to assist one over the other because it may appear as if we re taking a position with the Human Relations Commission and have forgotten about them being able to represent themselves and speak for themselves Manuel Salinas Full Interview Did you design a plan for handling this Answer No really not Once they began to ask a few more questions though and the people began to ask questions or say we don t like this or that or the way the department has handled things before then the only plan that I had in mind was for me to be able to sell them on the idea that we need to know more and the way you re going to know more is through a police assessment I told them that we could handle that for them and bring that team together on behalf of the community and work with the chief to make sure that this is done And they thought that would be a very good idea since they knew very little about the department they thought this would be very helpful to them for the long range for later on So we had that done And the chief agreed on that He wasn t reluctant at all and that s one good thing about it Had we had a very stubborn chief of police it would have been more difficult There would have had to be greater protest and for a longer period of time The protest didn t last that long Things were beginning to move in the direction that the committee felt would be helpful The chief then was looking for something that would help him So it would help both parties FOOTNOTE 6 Mediator Comments on Fact Finding in Mediation Ernest Jones Full Interview Question Now in this particular case mentioning that did you feel that the conflict became defined a little bit differently as time went on Answer No it was the same There were clear issues That s the one good thing about that situation was that the issues were pretty clear and definitive and the numbers were there The data was existed Question So there weren t any factual discrepancies Answer No there were a lot of discrepancies because people would express their position on an issue and over a period of time they came to distort the issue Question For example Answer They d make statements like a black has never held a position above Sergeant Well that s not true and the city could show that in fact they d had an assistant chief who was black They d had a black captain They d had a black major They had a bunch of black lieutenants Over the history of the department they d had these but what had happened is that the black officers just kept saying nobody has been above a Sergeant And all of a sudden that becomes the truth for them and it wasn t the truth Factually that wasn t the truth but for the black officers that was real it had just materialized to that point I could just cite that for a whole bunch of different issues from the cities perspective from the FOP s perspective and from the black s perspective This is just human nature We allow things to become something that they re not because of the emphasis that we place on it Question Now once the facts were actually given and provided did the other side accept those as facts Answer Well let s just take the one we were just talking about As I recall the response was something to the effect of well yeah we forgot about that but that was 30 years ago We re talking about today And that happened with those kinds of issues People reluctantly understand that the historical data is there because it s on paper and people can prove it But because they ve made that an issue and they ve stated their position somehow there s got to be some face saving taking place here and so we change the focus to today That s what we re talking about And that way everybody has saved face all the way around the table And that happens a lot and it happened a lot in this case Question So they didn t lose any of their validity Answer Their perspective was well we showed you It s incredible to me how childish adults can be I don t know why because I see it repeatedly day after day but it has a whole one upsmanship Well we showed you that you were wrong Yeah you did but you had to go back thirty years to do it It has that whole attitude So everybody feels that they ve made their point and now we just have to figure out how to get it down on paper That s the trick FOOTNOTE 7 Mediator Comments on Maintaining or Regaining Control in Mediation Julian Klugman Full Interview Answer One I mentioned was the kid Question But what were the various approaches you used for dealing with that Answer I quieted them down You re teaching them you re a role model It s how do you deal with that anger I ve been in some very violent situations where you get angry your heart starts beating and your natural impulse is to lash out That s where training comes in Or if I m really angry or if the violence is really scaring me I take a deep breath and I psychologically step back a foot I wait until my heart stops pounding which takes about sixty seconds before I respond at all You can be angry but it s got to be controlled Listen to what the person s saying don t respond to the anger Don t be condescending don t be a smart aleck don t act like you re really afraid Don t be a psychiatrist but do take the person off the hook and depersonalize it And this is where the interracial thing becomes important There are differences between people and between groups and how they deal with anger Do you know the book that the white professor at the University of Illinois did about the differences in confrontation between black and white It s an excellent book you ought to read it You ve got a great difference in perception sometimes of what s happening I saw it in Palm Springs once Here s this nice sweet young white teacher and a black woman parent came out with a lot of anger which really wasn t directed at this woman The white woman started crying and the superintendent wrote a complaint letter to the Attorney General of the U S about the mediator Question How does the mediator deal with that problem Answer Well you re a role model you ease up the flow You might suggest a bathroom break Question Then you take the black person aside and say the reason she s reacting this way is because Answer No I would not presume to tell this woman she does not have a right to be angry This young white teacher you tell her it s not personal She was head of the cheerleaders and there were no black cheerleaders There was no prejudice involved of course but the Palm Springs high school did not have any black cheerleaders So they wanted some black cheerleaders and she had her own little kingdom of cheerleaders There are a number of techniques You break the flow you talk calmly you go onto another issue You assert control in the situation Question Going back to the anger management when things get really hot in a mediation how do you cool them down Answer Sometimes you can make a joke Everybody likes it when you laugh at yourself and make fun of yourself so you can diffuse a situation through humor One former CRS director used to draw cartoons Very good ones I ll show you I ve got a whole series of them He would sit there and he was like a professional cartoonist although he was a lawyer Question Break the flow Any other ideas Answer About how you handle it Ultimately you could adjourn the meeting if you had to or you could have a recess And then you talk to the person Stephen Thom Full Interview What I told this principal was Do you know the players do you know the real players that were involved in this altercation She said Yes between the counselors and security we know who the players are I said Okay bring them in one by one Tell them you need their help Tell them I want to make sure that we bring this school back together and I need your help Will you help me You re the principal of the school And she said Oh yeah just bring them in one by one I said Yes see if you can get them to support you What happens if they don t she asked Keep them on suspension So I called her that evening and she said Steve every one of them gave their word It s amazing these are great kids I said Yeah they are Have you never met them before She said Now what do I do I said Ok they re keeping their word they re helping to keep things calm She said Yeah they are but I don t think I can just leave it like this I said Now that they ve made a commitment to you you can bring them together as a group So bring the Samoan kids in Remind them they ve already made their commitment that they ve individually given their word so that peer pressure doesn t take them to another level Then talk to them about how we need you all to control not only yourselves as individuals but also others to help diffuse the tension here Then bring in the other group and do the same thing So she talked to them and she said They all agree we re all on the same page Things are still okay Stephen Thom Full Interview Do you have techniques you use for reducing tensions between the parties Answer Sometimes they get hot and I have to watch the parties and see what level of tolerance one has of each group I read the behaviors and decide whether to ask them to calm down Sometimes I call for timeouts and ask for caucuses There have been times where I ve said Wait a minute we need to review why we re here and what tone and ground rules we ve agreed to abide by If I sense some discomfort by some of the people I ll say By the behavior of the individuals there seems to be a need to take some of that tone out of here or Could we take a time out At that time I can meet with individuals to draw out that person and speak to that person directly and say You know you re creating a level of hostility Do we want to move forward in working towards a solution We re not going to cut you out of getting your voice and what you want to accomplish but the tone is going to possibly harden the other side so it depends what you want to accomplish here Think about that as you convey your issues You could be passionate but don t get to the point where you re so aggressive that it harms the process I think those are the kinds of techniques that I have used Stephen Thom Full Interview The other thing I wanted to mention about tension is I think it s always good to bring humor I have a very light humor They always say something that you can play off on that you can stay within the context and still be light enough but bring enough humor to defuse some of that tension I think humor is a very valuable tool Some people know how to use it and some people don t It s tricky I know because you can get hurt with humor sometimes but I found humor to be a very meaningful way to relieve tension and a valuable one Question Do you have any examples or guidelines for humor Answer Well now you re asking me I can t tell jokes I can t remember Maybe the things that you play off on are things you hear and the misinterpretations we have and using yourself as the vehicle for humor versus any of the parties But everybody will say something and then they ll know it s a miscommunication or it s a faux pas of some type and you catch it and you go Did you hear that one Just a light playoff on words sometimes can relieve a lot of tension When you see the parties warming up in that vein of a little humor sometimes it gets a whole lot of invigorated faith in the other person s ability to recognize that the other party is just another human being with needs and interest just like me Edward Howden Full Interview Question What you did to reduce tensions when they are high Did you ever run into a situation in mediation where things got really tense and you needed to calm them down Answer Sometimes I was usually able to moderate the situation without any heavy handedness Once in a while a certain decisiveness maybe even standing up and speaking very loudly was necessary That was rare but I can recall a couple of occasions where that in my judgment became necessary One was a business mediation which was kind of unusual for us to do but a minority sub contractor was one of the parties on a big housing development that had been ninety seven percent completed It was a middle income development and there was an impasse between this sub contractor who had some minor finishing work to do and the general contractor who was not minority They had some bad blood on various things various past hassles and now they were right at impasse As I recall somebody from HUD called us HUD was involved in some aspects of the financing and everybody wanted to see the project finished since housing was a desperate need The attorneys for the two parties actually were willing to have us give them a hand One of the attorneys handled arrangements and they were willing to move fast like tomorrow I had no chance to study the issue They were so anxious to get to it I think it was the attorney for the minority sub contractor that he arranged the meeting room in a major hotel normally I would be doing that Anyhow we got into that session quickly The minority sub contractor the main person didn t have a bonding capacity or something he had some kind of a problem financially and he had brought in this guy from New York to help him We went through the regular opening routine and I explained to these folks look you all understand that I m not expert in the contracting business and I ve had no chance to study up on this as there s been no time You re in a hurry so you re going to have to educate me as we go along and I may have a lot of questions They agreed and we got going We got fairly well into it but then an impasse developed and people got angry A gentleman representing the minority sub contractor who was six foot three and big strong guy said angrily I m not going to take any more of this you know and accused the general contractor of insulting him I m not going to take any of this this is a waste of time and he stood up to walk out So I m at the end of the table and I stood up and said Dammit Mr you agreed to the approach we were going to take to this and we are following that approach and I think we can make it so please sit down He paused a moment and then he sat down And we got on with it By the end of the day we had a deal As a matter of fact Mr was so happy with the deal he invited everybody down to a bar at this famous hotel and bought us a round of drinks There was one other intra tribal scene where a lot of folks were present and it was just not feasible to limit it to a four or five member team Actually there were several teams from either side There was a clan or family grouping with history behind it that was very unhappy for maybe a couple of generations Some of the other members of the band insisted on being present It wasn t public with press but there was quite a crowd and that got messy People were standing up shouting and it became pretty difficult to have any orderly process After a time trying to keep it on track I asked for a recess and spoke with some of the folks I explained that we had agreed in advance who the people were who were going to handle this and I told them that we were not going to be able to pull it off if it continued like it was going I don t want to tell anybody to go home I can t tell anybody to go home I said but how about we convene the original group in such and such a room So we proceeded on that basis But that was one case where it was it couldn t have gone anywhere on the basis on which it had started In situations with high tensions from time to time there would be individuals who would explode or get close to exploding but usually we didn t have anything fall apart when that happened We were able to have our recess and to caucus and get back on track Will Reed Full Interview Answer A

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