Selling Mediation

 

Stephen Thom
CRS Mediator, Los Angeles Office


[Full Interview]

This rough transcript provides a text alternative to audio. We apologize for occasional errors and unintelligible sections (which are marked with ???).

Question:
How do you do your assessment?

Answer:
I always insist on meeting the parties face-to-face. When I make my initial contacts, I try to minimize the amount of talking I do on the phone, and I try to explain what CRS is, what our intentions are, and that I am a mediator and will attempt to resolve whatever conflicts are out there. "Could I see you or meet with you at any point?" I ask that right away, because I think they can't begin to build trust until they see you, they get a sense of what you're about, and I've always found that to be surprisingly easy for me, I don't know why. Sitting down with people, and sometimes being very factual and explaining what we're trying to accomplish as a service to them and of course at no cost to them. I think it is always a kind of, "Why not take the risk?" I think it is a marketing process, but it really takes a face-to-face marketing opportunity, and it's a service that will hopefully accomplish their objectives.

Question:
Does it always work?

Answer:
Not always, but most of the time it works. I always try to draw the biggest picture I can when I'm talking to people about a complaint or when they are grieving an issue, because I want the parties to have a lot of options, and I think it's always good to help them to look at what options they have, and to see mediation as one of those options. They have control of the time and their participation -- all of those factors that mediation typically allows a party to control. When they see mediation juxtaposed to the other options, often times they choose to try mediation. I'm going to change the subject.

Question:
Go ahead. We can come back to this case.

Answer:
Okay, when I do a typical excessive-use-of-force case, where somebody's been killed, and there's some level of shock, I always talk to them about, "Let's look at where we are. When the incident occurred, you went through shock. Then you go through denial, certainly you wished it didn't happen and you want it to go away. But then you get to the point of anger, disappointment. And then you begin to get to the point of blame and you start blaming sometimes yourself and others, who's at fault? You can either stay there -- some people stay there for a long time -- that blame period is what I consider the marching period, when groups go marching and demonstrating and are venting anger. Later you reach a point of acceptance. You accept that it took place: "I know it took place, but how do I deal with it?" Then you can go to resolution and reconciliation. So, when you explain to people what the process is and they can find themselves, and I usually say, "Look, you may want to demonstrate. You may want to march, and we can do that as long as you want to and we'll work with you on that. But until you get to some type of resolution, when you're going to stop and really work through the issues, you're not going to be able to put this behind you." This is how I try to give them a sequence and a picture of a process. I do this for other kinds of cases as well as. The parties have the option, whether to pursue a civil suit or mediation, or to continuing to march, but "here's where you are, here's the options that you have, and this is what I am offering you. You can proceed with all your legal options, you'll need to get a lawyer, you'll need to file a suit, you'll need to see what you can find pro bona, you can file a complaint, you can go through EEO; every scenario of any kind of complaint has a number of options and I want you to be in control, and I want you to understand what I can offer you as a federal mediator."

Question:
People have the patience to listen to this if they're angry or enraged?

Answer:
By the time I get to the meetings with people, the anger is there, but they want to know what their options are. They're interested in that. Their anger needs to get focused on something constructive at some point, and I think they realize that. I think they appreciate it if you can give them that big picture. That's the way I approach a lot of cases. So in the case with the institution, we talked about all of the options. Because the institution had already consented to go to mediation, we knew where we were going, so it wasn't hard to get them to sit down and really work with us. When we actually went to the table, we had an agreement on the full agenda, and as we went through the list of issues, it went fairly smoothly because I think we knew where we were going and we knew the parties common ground and interest and we knew that the institution was willing to concede the remains to the tribe. They had learned about the spiritual need for Native Americans and recognize that they did all the testing and learning they could with these remains. They had no real, viable use for the remains. The pictures they had taken and the pre-measurements and all of the analysis they had was documented in a way that they didn't have to hold these remains to teach students in the future. So they were comfortable. But we reached an impasse on the issue of the remains that were on loan to another institution for a period of time. The Native Americans, at that point, said, "We want those remains to be buried with the other remains at this time. We've agreed to a time, a date, a location, and we have a ceremony to do. What are we going to do with these remains on loan? They need to be brought back." The institution was caught, because they had made a commitment to another institution. We couldn't get the parties to agree on a delay of the whole process, because the Native Americans were anxious to get the remains into the ground to evolve its natural process. The institution was caught because it couldn't get the remains back without violating its commitment. They had talked about talking to the other institution to see if they could get the remains returned earlier, but that was impossible because the other institution had not finished doing important testing. I think, in all honesty, the representative of the first institution made a viable effort to try to get the remains and expressed that to the Native Americans. So we were stuck in this impasse. We couldn't figure out how we could get the Native Americans to allow the institution to have an extension. It looked like we had to go that way because the institution that had borrowed them had not finished what they needed to do and had begged the institution to allow them to do that. And in good faith, the first institution said, "We cannot violate that commitment." We were there for hours. We looked at all the options we could come up with. We caucused and we came back. We took lunch and came back to the table, but there was no movement. We did everything we could to see whether we could refresh and energize the parties to back and figure out some acceptable option. It was about the third or fourth caucus when one of the representatives came up to me and said, "I think I have the way." She was the spokesperson of one of the tribes. I asked her what was it? "They have to tell us." "Tell you what?" I asked. 'They have to say, 'That's the way it is, you can't have them. That's the only way. You can't have the remains until we are done in two months.' They have to tell us."