Senior Conciliation Specialist, Community Relations Service
Topics: listening, facilitation, peace processes, compromise
Interviewed by Julian Portilla — 2003
Listen to Full Interview
Listen/Read Selected Interview Segments on the Following Topics
- Developing Trust
- The Rodney King Crisis
- Practical Details in a Complicated Situation
- Negotiating Your Own Solution
- It Is Not Your Job To Solve The Problem
- Interest-Based Bargaining
- Simple Mistakes
- Reluctant Disputants and the Third Party
- Signed Agreements
- Handling Emotions
- Deciding Who Will Be At The Table
Q: Give me an overview of your work please.
A: I'm a mediator of the Community Relations Service of the Justice Department. So basically I have been working on racial conflicts in communities. That has included helping in the school desegregation process in Boston in 1964 and 65 and in a number of other school districts for the rest of the seventies. Since 1980 I have worked in the Denver office and that had involved quite a bit of work on and near Indian reservations. While you have some of the same conflicts there that you have in other communities, there is also an overlay of the whole history of tribal relations. Such as issues of jurisdiction and sovereignty, which color any other conflicts that might exist. I was in Los Angeles for five months after the Rodney King incident.
I spent about three or four months in Guant namo Bay when they had Haitian and Cuban refugees there. There were 30,000 plus people living in tents and so that generated some conflict. That was a combination of just basic conflict resolution and also trying to identify leadership there and providing leadership training and conflict resolution training. I was one of the co-mediators mediating between the Adolph Coors brewery and the National Hispanic Coalition, which has been a coalition in reaching an understanding between them. It was a long case it took about nine or ten months, partly because they were so spread out. Coors were all here in Colorado, but the Hispanic coalition was made up of leaders from across the country. So just the logistics of getting them all in the same place at the same time became a challenge. That gives you a broad picture of the things I've been involved in.
Q: When you go to these cases you are working for the Federal government. How do people react to that?
A: You know, it depends. It can be a pro and a con. It is not just the government it is the Justice Department. I think sometimes people have expectations that I cannot meet because they think that the Justice Department will come in and investigate the bad guys and resolve it. So I always have to be very careful in explaining what roles CRS in fact plays. I also have to be careful to explain that I am neutral, impartial and I am there as a resource to work with all of the sides, and basically describe the role of a mediator.
But in each of those cases it reaches the point where the relationship is going to be with you not the agency that you represent. Particularly in communities of color if you can't develop a trust relationship, and I don't mean trust in the technical sense in terms of Native Americans for instance, but just where they trust you, then who you are with does not really matter. It is important to find ways to develop those kinds of relationships before you can try to mediate or conciliate or resolve the conflict.
Q: Even in the case of Rodney King where most of the violence was sparked by the perception of the injustice of the authorities, the police, who work for the government, and then you come in?
A: And I say" I'm from the federal government and I'm here to help you."
Q: Do you somehow try to disassociate yourself from the agency?
A: I don't try to disassociate myself from the agency because I always have a goal to let people know that here is in fact a federal agency that is of use to you. So I don't try to disassociate myself from it. Rather I try to find ways that they can see that they can trust me. Part of that is being realistic about expectations that they can have of me. Just because I can't come in and investigate and I can't sue anybody and I can't punish anybody, here's what I can do. Let's look at how that can be helpful to you. I begin to set realistic expectations of what they can expect from me and I can begin to carry out that role that I'm supposed to be carrying out.
Part of that is not trying to pretend that I can fix all of their problems because I absolutely cannot. I explain here's a piece that I can do and here's how I think we might be able to do that. So let's talk about how that might be useful or how we can best go about that. And if that then works, and is something that is important to them or valuable to them than they will take it.
Q: How do you go into a situation that is so hostile and so oppositional as was the case with the Rodney King incident?
A: I think part of what you need to be able to do is to identify smaller pieces of the larger conflict that you can actually respond to. Since I was not from Los Angeles, it was very clear that I was just brought in for this particular case. I had no illusions about being able to fix that whole issue or that broad of a conflict. So part of what I had to do was to identify pieces of that that I could address where I could make a difference and where I could be useful to all of the parties. I think that is true of many bigger problems or many bigger conflicts. What you need to do is if I can't fix the whole thing then maybe I can at least fix something in this neighborhood or maybe I can at least get these two parties talking. Or maybe I can just ease tensions here somewhat.
Ironically I ended up working primarily in the Korean community in Los Angeles, so I personally hardly touched the black-white piece. I mean, there was other staff that did that. That was partly because initially some of the things we did were just to visit the disaster action centers. Those were centers established where victims could come for different kinds of help. The Red Cross was there. The small business administration was there. The FEMA (federal emergency management administration) was there. The California emergency management agency was there. There were hundreds, in some cases even thousands of people, who wanted access to this.
So one of the first things that we did was to look at the flow of people coming into the center and tried to minimize the conflicts that could have been created there. Where were the bottlenecks? It was a logistics thing, more than a traditional conflict resolution thing. Then by doing that work we became more familiar with what the specific issues were and of what some of the major concerns were. As a result of that we ended up doing a fairly extensive mediation process between representatives from the Korean community, and the major responders to this situation FEMA, HUD, CEA. The Korean community really felt as if the response was not what they needed. The agencies had a solution but its not our problem. Even the food provided didn't match the needs. Dried beans were not helpful in the Korean community. What processes get used and how did the Koreans get access to these were the issues. These issues resulted in an intense three-day mediation process. This was perhaps one of the most intense mediations I have ever conducted.
And what was interesting was at the end of the mediation every day, the most exhausted person was our translator. Because the whole thing was done in Korean and English. There were enough people in the Korean community who spoke some English who would second guess what the translator had said so that dynamic became interesting. We had to have three translators because nobody would come back the second day. We had a different translator each day.
Q: So you were mediating between the Korean community...?
A: Right, in particularly business leaders because it was the businesses that were particularly hit during the riots or the revolution.
What became interesting was what terminology you used became critical in this mediation. If you went into the African American community and called it a riot, they would say it wasn't a riot, it was a revolution or disturbances. So I have come to call it the Rodney King event and responses to that and consequences because just how you define something becomes an issue in different communities.
Q: So, I am still not clear, these negotiations were between the Korean business leaders and the organizations?
A: Right. And so NGOs like the Red Cross.
Q: There were a lot of organizations involved in that. What sort of coordination did they have and what was your role in that, if any?
A: Not that much, but we did provide suggestions about the layout out of the center to prevent crowding so that if there were a lot of people on one side and not the other we would try to make a larger space off to the side. Now during the mediation we had all of those people at the table, 25 or 30 people at the table that the moment, which was why it took so long. Part of it was creative thinking and coming up with ways of matching what was being offered to what was needed. Can we get more fresh vegetables to replace the dried beans? And that kind of thing.
In many cases, like with the Small Business Administration, and not just with them, a big issue was just finding the right documents that were needed to get some of the grants and loans because some of them had been destroyed in the fires that had resulted or whatever had happened and so on. So what other kinds of documentations would be acceptable? Another piece that came out of that was that SBA subsequently provided workshops for potential applicants for the process of applying for small-business loans and things like that. So a lot of it was really how to improve communication between the two.
Q: It sounds like a lot of the practical details.
A Yeah, but by being aware of some of the shortcomings and what some of the logistical problems were they could then brainstorm about how to handle that. As I said in some cases, SBA had some follow up, not so much mediation sessions, but sessions with key leadership about how to most effectively make use of what the SBA had to offer.
Q: Does working on small practical details like this diminish tension?
A: It does because it relieves frustration and it gives people the impression that we really do want to be helpful. As the guy from the SBA put it so well, "I'm here to make grants, not to avoid grants. Or I'm here to make loans not to avoid loans." And I think just getting that concept across and have people believe that was huge. Because so often the impression is that it's your job to make sure I don't get it. So coming from the perspective that I want you to get the loan, let's see what we can do to make that happen, was a shift in how that organization was seen by the community. It changed the relationship, but it also began to change the climate in the community from one of total frustration which generates more conflict, to one of well at least here is a piece where we can get some help that we need and that made a big difference.
In terms of a moving experience, if I can jump around here, was in LA. As I got ready to leave to go back to Denver permanently, I let some of the key people that I've been working with know that. What was particularly interesting within the Korean community and lot of my work had been mediating within that community, was that when they were competing about who the leaders were, they were not self-destroying. I did a lot of listening and learning. I was constantly on a learning curve there.
The day I left or the day before, a coalition of Korean business people who hadn't always necessarily worked collaboratively, but I had helped you know bring a little bit more cooperation there, came and brought me a plaque of appreciation. And I said something and it was really emotional. Some of the men were actually in tears, and Korean men do not cry a lot. I said, "Gee I really feel that I don't even deserve this. I mean I can see how great the need is but there was still so much to do, and I really didn't do a whole lot to make that any better." Their answer was, " But Silke, at least you listened."
I use this story often, not to pat myself on the back for getting a plaque, but to really emphasize the importance of at least listening and trying to understand what you are being told and that has been true in so many cases. I think that so often the biggest frustration or at least one of the biggest frustrations in victim communities is that they really feel like nobody is listening. Nobody is even trying to understand what their concerns are, what their issues are, and never mind trying to fix it. Actually taking the time that it takes to just listen, instead of saying, "well listen I've got another appointment, it was so nice meeting you bye," which is very often the temptation, was huge. I found that in most communities I've worked in.
Especially, initially, you have to spend a lot of time to listen, and listening not just to the immediate issue, but to the history as well. And to understand that even though some of those things may have happened ten, twenty, fifty years ago, it's still part of the current conflict. If you don't hear that, if you don't listen to that because it's not relevant today, then you are going to lose that credibility and that becomes really important.
Q: Can you think of any other inspiring moments?
A: I can think of one. Part of the conflict was within a governing body and I don't want to go into more details than that, but they had a lot of real friction between people who did not trust each other. I spent just a day and again realized that communication was a key part of what the conflict was about. Another piece that they also needed was to better understand what they're priorities were and where they were going with this.
At the end of the day even though in their time limitations which they had for a number of reasons so I essentially spent a day meeting with the party and some individuals and so on, but by the end of the day the two key protagonists actually hugged each other when they left the room. That's when you say," And they pay me to do this!" I mean it's wonderful and in some ways if I thought back on almost every mediation, there's a similar moment. It's a moment when the parties involved suddenly realize that I actually can talk with this other party, this other side and they actually heard me and they understood.
What is just as good at those moments is the point where I can begin to realize that even though you are not could giving me what I really wanted, I now believe that you are giving me the best that you can, given the circumstances that you face. Whereas before if you told me I don't have the money to do that, I would have seen that as a cop-out. I now understand that you don't really have the money, but let's see, now that I understand what your fiscal limitations are I now believe that we can work around that and still address that issue jointly. And that's a huge step.
Again I can think of another one where there was a lot of distrust early on. By the end of the mediation process which took weeks, even months, by then end of having gone through that process one of the parties was actually willing and we were now beginning to word the agreement or the understanding, one of the parties was willing to accept wording like, "Party A will make every effort to --". At the beginning they would have said that's bullshit! What do you mean make every effort to. We want verifiable goals we want verifiable numbers and you either meet that or you don't.
Q: We don't want you to try, we want you to do it.
A: We want you to do it, exactly, but after having gone through the process they really believe that if let's say Fred and his company and his organization said, "Look, we're going to work towards this goal. That they would believe that and would be willing to accept that kind of language because during the course of the mediation process the relationship of being mostly confrontational and not trusting began to change towards one of collaboration and how can we work to make that happen. Again, that is when I say, "They pay me to do this? How great is this?"
When I try to sell the mediation process, that's one of the points that I try to make. Mediation is so much more than coming up with a good agreement. In a case like that, let's say you had a brilliant judge heard the case and came up with the same agreement. The outcome would have been totally different and probably would not have been accepted by either side, or certainly either side would have been quite unhappy with it. The key part of the agreement is the process that the parties went through to reach the agreement. The process totally changes the relationship and the dynamics between the parties. That's such a key part. It doesn't mean that they will never have conflicts again, but the dynamics of how to deal with those conflicts has changed somewhat and that's wonderful.
Q: What lessons have you learned over the years? What advice would you give to a rookie at the Community Relations Service?
A: One is listening. Spend as long as it takes is important. Realizing it is not your job to solve the problem. It is your job to help the parties solve the problem, is a key piece. It is not your job to decide who is right or who is wrong. It is not your job to come up with the solution. It is your job to help the parties realize what they're real interests are and help them bark out a solution. Inevitably when they start with the role play, they go and as an investigator. They try to sell solutions before they even understand what the issues and needs are. That is so important.
Even understanding the difference between demand and interests. For anyone with any mediation training, that sounds, "yes of course," but really understanding that piece and internalizing that is so important. You set the agenda and issues. Not the parties because the parties come with demands. They come with what they think they need. But if they say they think that the police chief should be fired or they want a superintendent fired because they are racist. How do you help the party get from that point to recognizing what would be different with that department if you had different leadership. The solution isn't necessarily firing somebody are getting rid of somebody, rather finding how you want that system to work. If it worked well, what would it look like for you. Those points can actually be presented at the mediation table. If you only discuss whether or not to fire somebody there won't be a lot of discussion. There won't be a lot of give-and-take at the table. You either do or you don't.
My favorite illustration of that is the story about the mom who comes in when the girls are fighting about the orange. Everybody thinks they know that story but they don't. She splits it in half and they each get half. After the mom does that she sees that one squeezes it for juice and the other grates the peel. So if the mom would of recognized their interests, they both would have gotten all of what they wanted. A good mediator will understand the concept behind that but a great mediator will take the illustration one step further and say OK one girl wanted juice, but her need isn't orange juice it was needing a beverage. She might have been happy with water or milk, or my personal favorite beer, or coffee or whatever. The other girl needed a seasoning. So if it wasn't orange, it could have been maple or vanilla. Any number of options there.
If you really talk and focus on what the needs are, the orange is one possible solution, but there are lots of others. Beginning mediators are so focused on the orange and who is going to get the orange that they lose out on a whole spectrum of other possibilities because they are allowing the party's to limit the discussion around who gets the orange and what's parts of it. In fact the possibilities of resolving this conflict are much broader. We are not even getting into the possibility that the girls were not really fighting about the orange, but the orange was just a convenient object at that point because they fight over everything. I'm not even going to go there but that might be another piece of it. Regardless, if we just focus on the orange, we are limiting their possiblities, and we are limiting our abilities to help them deal with the conflict.
Q: I've never heard the orange metaphor taken so far.
A: That's exactly my point. Everybody thinks about the orange and what piece of it do you want. But there are some cases, when you spend the most part of the fight discussing the orage, and you're not going to get the orange. But to that people say," I don't know how to resolve that", I think you're selling yourself short. You are not allowing the parties to explore as many options as there really are. You're allowing the orange to limit where we look for possible solutions.
Q: ???Do you get called on Argentine visits on places where there might be problems?
A: We do both. That makes me think of another lesson, and that was a mistake I made. No doubt about it. In this case I wasinvited to participate by a community advocacy organization. I was to then meet with an institution where there were some racial conflicts. And I was under the impression, I thought I'd asked, but I might be wrong, that the institution knew I was going to be there. It turns out that they did not know that I was coming. All they knew was that they were getting hassled by this advocacy group, and all of a sudden, the Justice Department was there as well. I didn't find out until afterwards. I thought the meeting had gone pretty well. We were even looking towards mediation and they had expressed a willingness to mediate.
But it turns out later, they did not know I was going to be there and they were furious that the Department of Justice had come on site without letting them know first. It eventually worked out, but you know what I ate crow. I admit I was wrong. I said, you know, I made the assumption that you knew, and that was unfounded. I am so sorry! But I still think that I have some things that I can offer in this situation. It ultimately worked out OK. But I certainliy learned a lesson that I make sure that all of the key parties know that I am coming into a situation before I come. I don't leave that up to anyone else but me to make sure they know that. I don't know in the overall scheme of things, if that's a profound insight. But it's something you can overlook and then oops! I won't make that mistake again because I really learned my lesson.
Q: When you come into a situation, how do you assess the appropriateness of your techniques and models to that situation? Is mediation your primary tool? Do you have other tools?
A: I have other tools. But in some ways, and this is sort of a personal thing, I think when I first approach a conflict, I try to determine whether I can get the situation into mediation. That is sort of my own framework that I work towards. I might find out that one of the parties is really reluctant or there might be some other needs.
For instance, if one of the parties will accept training in one of the areas that is creating the tension, then I will go a long way towards easing the tension in resolving the conflict. So that's what I'll do. It is interesting how many parties still see agreeing to mediation as a failure on their part. It's as if they request mediation, they are acknowledging that they couldn't handle the situation themselves. I'm not really sure what they're afraid of. I've noticed that there is a great reluctance on the part of parties, sometimes, especially "establishment" parties, if you will. But if they agreed to mediation, it seems like a huge legal step, when in fact, the whole idea of mediation is less legal and in some ways a less formal response to conflict, but it is difficult sometimes to sell that. But if I say I just want to facilitate some conversations and see if we can come up with some solutions, but not call it mediation. If that'll work let's do that. We can then decide if we want to write up what was agreed to or just shake hands.
I can think of one example, where we faced the dilemma of one-party needing a written document, and the other party simply would not sign an agreement. It wasn't going to happen. The way we got around it in that case is I ended up writing a letter to both parties, saying based on the mediation session was held at such and such dates and explaining what my recollection was about what was agreed to in the end. I included that if they disagree, please let me know and I'll revise it. It was slightly tweaked after that, and corrected. The one-party didn't have to sign anything but the other party had a document they could present, so that they could proceed with what their need was.
Q: It's like they got a lemon instead of an orange, but it still worked. Is there a particular piece of theory that undergirds your work?
A: One of the things that I keep thinking about is how you gain credibility with both parties and help them to really recognize the value of participating in all of this and realizing that the value is not just the outcome of the agreement, but there is also value of just sitting down with the other party and talking about this.
The other thing that I've learned, particularly when there is a lot of distrust and hostility is the importance of explaining to the parties that I will control the process. They don't have to worry about it getting out of control. If it looks like it's getting out of control, I promise you I will stop the process. Because so often their experience is whenever they get together with the other party, it turns into a shouting match, and they don't want to subject themselves to that. And that's both sides. So just the assurance that I will manage the process, but not the outcome, is one of the selling points. At the same time part of the preparation is explaining that each party needs to be able to voice their frustrations. They need to voice what they're angry about, an you know what that will be helpful to you too, because you need to understand what they're angry about to be able to deal with that other party more effectively. So I don't pretend to try to squelch the emotions or anger.
I can remember one Native American conflict. I had met with a Native Americans party and representatives, and they were livid! They were so angry! And again I heard a whole history. I had real concerns about what might happen if I bring this group together with the white establishment agency. But it turned out that it was almost like they'd gotten that all out of their system the day before so when we got the table, they were almost docile, to the point where I called a caucus and met with that group and said, last night, you were furious. What happened? Who's going to explain what you are so angry about here to the other party? They need to hear that. So in a much calmer way they brought some of that out. This also reinforces the value of just listening. Just because someone from the government had spent that long listening to what they had to say was a big step to getting them to think maybe we can actually fix this. Listening is not just touchy-freely sensitivity. It's actually a really important tool.
I just thought of another story that illustrates how you have to be creative when you're mediating. Where there was some history between the parties previously. I knew there had been a previous agreement between them, but there was still a lot of hostility. A community group took a school district to court and when the judge asked that they try mediation first, of course, they agreed. Neither one of them wanted to be a party that appears unreasonable. But one from each party said, "Well Silke, it is nice that your are here. But I don't think it's going to work because they're so unreasonable." The first time we actually got both parties to the table, the first issue was who was going to represent one of the parties. Never mind examining where the flexibility was or room for movement. One of the sides refused to proceed if a particular person remained a representative for the other group. Basically they claimed she is not a plaintiff. We are supposed to be mediating with the plaintiffs. She is just a troublemaker and instigator, a rabble rouser. In fact we might not be having any problems at all if it weren't for her; it was almost to that extent. So if she sits with that group this mediation is over.
The way we finally got around that was in caucus. I was able to persuade the party that didn't want her at the table, that it wouldn't work. I said, "look, let's assume that we reach an agreement when she's away from the table. If you reach an agreement and she's not happy with the agreement what you think will happen?" "Well, she'll probably sue," they answered. So then they came to understand that she might be able to nix any agreement from the outside and that wouldn't be a good thing either. But they already had taken that stand that they had established as prinicple that she couldn't be there.
The way we finally got around this is that she could be there as a resource to the plaintiffs, but the plaintiffs would be the actual negotiating party. That way the defendants were negotiating directly with the plaintiffs but they also saw the value of having this other resource person there because at least any agreement that was reached wouldn't be undermined or thrown out because she wasn't there. Because the reality was that the plaintiffs were going to consult with this person anyway so that consultation was just expedited by having her in the room.
Q: It sounds like she could have sabotaged the process.
A: I don't know that she would, but I think that might have been a concern of the defendants. And it was more convenient ultimately for both if in fact she was part of the process rather than outside of the process. Working that out was a big (whew!) because without that we wouldn't have been able to begin at all.
Q: That's a really creative solution. It sounds like it was sort of suggested by you. Did you come up with that?
A: It was. I certainly avoid coming up with the outcome, what the agreement should be. But I certainly think part of negotiating and mediating is helping really understanding what the deep-down concern is. I think in this case, and part of it was just anger at the role that this person had played. But I also recognized that if this person wasn't involved, the process wasn't going to work, and they recognized that too. If they weren't willing to keep her there as part of the negotiating team, was there any circumstances that they'd be willing to keep her there. Once we came up with the idea of her being there as a resource, the question became would the plaintiffs be willing to have her there, but accept her limitations as part of the ground rules? And were they willing to have her in the room under those circumstances, rather than as a full participant. Both sides were willing to live with that.
Sometimes there is an advantage to having something like that early on. While I would never generate something like that intentionally, the advantage is that they hit what could have been a disastrous roadblock early on and they passed it. So they had early on had some experience of working out an issue that was critical to both of them and they were able to do it. They got past that. They both showed some flexibility. And from that they saw that this works. So maybe we can do a little bit more.
I remember one of the issues was over the use of bi-lingual versus ESL education. The two sides were really entrenched. Part of the way we got around that is we didn't talk about ESL, we talked about native language instruction. There came a point where the district was willing to entertain that. Even though they would never, in a million years, provide bi-lingual education. But if there was some need for native language instruction, they might be willing to do that.
In a case like that I did as much shuttle diplomacy between the parties when we were away from the table as I did at the actual table. Just to explore, to find out where the moveablity might be. If I found out that the district might be willing to talk about native language instruction, I'd go back to the other side and ask them if they'd be willing to talk about the issue in terms of native language instruction too. They said, "Oh, they'd never consider that." I said, "Oh, you might be right, but if they'd actually do that, where would you be willing to bend?" "Well, then we'd...," and there would be that kind of back and forth.
A:. Exactly. Some people think that manipulation is a dirty word, but there isn't a mediator that doesn't do some kind of manipulation. Some people think about manipulating as so Machiavellian, as having evil intent. But I manipulate situations to allow for success on both sides. To allow for a sense of accomplishment on both sides. For instance, if I know that one side is willing to provide some bi-lingual education, but I don't disclose that to the other side, until I see where their flexibility might be, someone would say, Silke, "you are being manipulative." Well, absolutely. Absolutely. Because I think I need to help both sides be creative in coming up with some solutions, but also to see that if they get something from the other side, that they need to show some flexibility as well. I don't think that's getting people to give up something that they don't want to give up. It's getting them to realize that there are benefits to being flexible, and that if they are flexible, then the other side might be flexible as well.
Q: It seems the timing is critical.
A: Timing is crucial, absolutely. Could I do a guidebook on how to use timing? I'm not sure that I could. Part of that is just experience, instinctive. That isn't very helpful, I recognize that. But thinking about the timing is important. Part of the strategy really is any time I present possible flexibility of one side to the other side, I always combine that with a "Okay, what can you do? What can you give?" Not a giving up, but a giving. And then I take that back. "If they were willing to contribute this, then what can you do?"
Q: This doesn't have to be compromise. Sometimes they can give things that don't take anything away from them.
A: That's right. Sometimes compromise is necessary, but often it isn't. Often you can trade things that don't hurt yourself. That's why I talk about "giving" not "giving up." What are you contributing to the ultimate solution, rather than what you are giving up from what you want. How you frame it becomes very important. I honestly can't think of anything I'd rather be doing. It's fabulous!