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Why Should I attend the ACR Annual Conference? October 9–11, 2013 in Minneapolis, MN What People are Saying about Previous ACR Annual Conferences (source: 2012 ACR Annual Conference Evaluation Report) “The annual ACR conference gives a diverse group of professionals the tools and inspiration they need to continue their important work throughout the year.” Having events in the same exhibit hall was excellent, that and the central location made it possible to arrange informal get togethers and brought traffic to the exhibitors. One of the best uses and locations I’ve seen at ACR recently.”

The conference was extremely informative and provided solid opportunities to network with all levels of subject matter experts. “ Good networking. Conference sessions were well presented and professional.” “Was an outstanding opportunity to become familiar with cutting edge ADR issues and network with other ADR professionals.”

I appreciate that many of the meals were provided by ACR or by sponsors. That was a big help in keeping the costs down.” “Getting together with fellow professionals can't be beat, and the ACR conference attracts good people.” Terrific opportunity for professional development, making connections with other sectors of conflict resolution practice and finding colleagues who are thinking through similar challenges.”

ACR is on the rise.... Growing, changing, hitting its stride.” www.acrnet.org/annual2013 2

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Winter 2013 • Volume 12, Issue 1 ACResolution is published by the Association for Conflict Resolution (ACR).

Editors Cindy Alm Bill Stempel

Issue Editors Tajae Gaynor Lou Gieszl Marvin Johnson

2012–2013 Board of Directors Executive Committee

Winter 2013 Departments 4 Message from the President 5

From the Editors

Marya Cody Kolman (President) Cheryl L. Jamison (President-Elect) Perri E. Mayes (Immediate Past President) Mary N. Miller (Vice President) Nancy Flatters (Secretary) Donzell Robinson (Treasurer) Tajaé A. Gaynor (Diversity & Equity Director)

Directors Sheri Callahan Jeffrey Cohen Julie Denny (Chapters Director) Bill Drake Tricia Jones Frances I. Mossman Gigi Robson Jonathan Rosenthal (Sections Director) Jetta Todaro John Windmueller ACResolution (ISSN 1537-6648) is published quarterly by the Association for Conflict Resolution, 12100 Sunset Hills Road, Suite 130, Reston, VA 20190. Copyright© 2012 by the Association for Conflict Resolution. All rights reserved. This publication may not be reproduced in whole or in part without written permission. Editorial Policy: The views expressed in this publication are those of the various authors for the purpose of encouraging discussion. Unless expressly noted, they do not reflect the formal policy, nor necessarily the views, of the Association for Conflict Resolution or its editorial staff. This publication is designed to provide accurate and authoritative information in regard to subject matters covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting or other professional services. If legal advice or other expert assistance is required, the services of a competent professional should be sought.

Features 7

Diversity & Equity in ACR

Tajaé Gaynor with Marvin Johnson and Angelia Tolbert

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Diversity in Mediation: More than Black and White

Bettina Jones

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Roots of Diversity in the Dispute Resolution Field: Some Preliminary Observations

Marvin E. Johnson and Maria R. Volpe

21 The E in D & E Bill Stempel 24

Mentoring for Diversity: A First Step

Dana K. Goodson

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University & Community Action for Racial Diversity (UCARE) Confronting the Legacy of Slavery, Segregation, and Discrimination at the University of Virginia

E. Franklin Dukes, Ph.D.

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Diversity of Practice and the Assumptions We Make About Each Other

Lou Gieszl

Send changes of address to ACResolution, Association for Conflict Resolution, 12100 Sunset Hills Road, Suite 130, Reston, VA 20190.

www.ACRnet.org

ACR Diversity and Equity Statement: The Association for Conflict Resolution is committed to diversity and equity in its membership, structure, budget and organizational work. A culturally diverse organization is one that recognizes, supports, values and utilizes people’s differences and similarities in support of the organization’s goals and objectives. Diversity and equity mean recognizing and working to eliminate injustices in access, process and consequences of ACR’s efforts to strive to meet the needs of diverse members and stakeholders.


Message from the President

D

ear Colleagues and Friends:

This issue of ACResolution Magazine looks at the theme of diversity and equity in conflict resolution. It includes enlightening articles that trace the history of diversity initiatives in the field and describe the circumstances that made them (and continue to make them) necessary. Other articles present a reflective analysis of a mentorship program for minority practitioners, a discussion of the impact on the mediation process of cultural differences between practitioners and their clients, and a thought-provoking look at defining and describing equity. Most of the articles quite properly include a call for further examination, additional discussion, and increased focus on diversity and equity. ACR has a deep and abiding commitment to increasing diversity and strengthening equity within our organization and the conflict resolution field. The advancement of diversity and equity is a core value of ACR as reflected in the broad ACR Diversity and Equity Policy. Recognizing the pervasiveness of diversity and equity issues in our field and in our society, the policy calls for those issues to be addressed throughout the organization, at every level, and in everything we do. Each section, chapter and committee is required to appoint a point person who serves as a lens, voice and resource for diversity and equity in that entity, and the Board of Directors has its own point person in Tajae Gaynor, Diversity and Equity Director. These efforts have helped increase diversity and inclusiveness, but there is still much to be done. Minority practitioners continue to be underrepresented on many rosters and in a number of practice areas, and there are entire groups of practitioners who have little or no presence in ACR. Many interested persons, who are members of minority or traditionally disenfranchised groups lack access to both conflict resolution services and training programs. Practitioners and clients who are members of minority groups still encounter barriers to full participation. ACR must constantly refine and update the Diversity and Equity Policy and its implementation. The issues can be very complex and the discussion can have many layers, so that as consensus or clarity is reached on one issue, new concerns and considerations often arise. We need open and honest discussions of diversity and equity issues because each participant in the conversation brings a unique perspective based on his or her own experiences and worldview. As the last section of the ACR Diversity and Equity Policy provides, “In order to promote diversity and equity in ACR and the conflict resolution field ongoing self-examination is essential.� One of the priorities of the ACR Board for this year is to focus on diversity and equity in membership, leadership, programs, communications and services. The ACR Diversity and Equity Committee will lead this effort, and they will be asking all members to participate. The committee’s first project will be to distribute to all members a survey designed to learn more about the demographics of our membership, and the diversity and equity interests and concerns of ACR members. The input of each ACR member is important; please take time to complete the survey when you receive it. The committee will also be conducting training programs for point persons and teleseminars for all members on pertinent diversity and equity issues. Additionally, the committee will facilitate discussions at the annual conference and in other forums about how ACR can continue to work towards making the Diversity and Equity policy a reality. This issue of ACResolution Magazine is part of an essential continuing dialogue. Cordially,

Marya Kolman ACR President

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From the Editors The issue editors for this diversity and equity issue of ACResolution Magazine were Tajae Gaynor, Lou Gieszl, and Marvin Johnson. As most ACR members know, the three of them have been deeply involved for many years in diversity and equity matters both within ACR and in the field of conflict resolution. Their individual and collective knowledge and experience has produced a selection of informative and stimulating articles on what continues to be a major ACR priority. With this issue ACResolution Magazine launches a new electronic format. Our goal is to make the magazine as useful and accessible to ACR members as possible. Over the next few issues we expect to add more features such as: • Formats optimized for different devices, so that you’ll find it easy and attractive to read the magazine on a desktop computer, a laptop, an iPad or other tablet, a smartphone, or some yet-to-be-introduced device • Easy navigation within an issue from the table of contents • Search capacity, allowing you to do topical or full-text searches in the current issue and in past issues

ORDERING INFORMATION ACResolution Magazine is available on a print-on-demand basis from the HP MagCloud website (www.magcloud. com) from which there are single and multiple copy options with the cost based on the number of pages in the issue and the delivery method chosen. For example, a 36-page issue delivered by U.S. Mail will cost about $9.00; HP MagCloud also offers Federal Express or other express delivery service for a higher cost. (Please note that these are HP MagCloud’s current prices, which may change in the future. ACR does not set or get any share of the price.)

Our move to an electronic format reflects the responses we received from a survey of ACR members conducted last year. The on-line features that we expect to add are those that were highly desired by members. We also encourage you to tell us about other new features you would like us to add. This issue is the last one that will be printed and mailed to all ACR members. We recognize, however, that some members would still like to have the option to receive a printed copy of the magazine as well as the electronic version. So ACResolution Magazine will also be available to members on a print-on-demand basis. For each issue you’ll will receive by email a link to the www.magcloud.com website from which you can order a printed copy (or multiple copies). The cost will be based on the number of pages in the issue and the delivery method you choose. A 36-page issue delivered by U.S. Mail will cost about $9.00; HP MagCloud also offers Federal Express or other express delivery service for a higher cost. (Please note that these are HP MagCloud’s current prices, which may change in the future. ACR does not set or get any share of the price.) Whether you read the magazine on your computer or tablet, or download and print the pdf version, or order a printed copy from HP MagCloud, we know you want a magazine that is enjoyable, stimulating, informative, and relevant to your work, and we’ll do our best to provide that. Bill Stempel Cindy Alm

Call for Submissions The next issue of ACResolution will feature articles on the wide range of practice areas and processes in family conflict resolution. We are seeking timely and thoughtful articles that inspire discussion, foster a better understanding of the use of conflict resolution principles and practices, or add to the collective knowledge of those in the conflict resolution field. Please send submissions (either a full article or a proposal for an article) as an email attachment in Microsoft Word format, to ACR Publications at publications@ACRnet.org. Deadline for the next issue is April 8, 2013. Articles should be 1,500 to 3,000 words in length, and include the author’s name, email address, photo, and a brief bio, and permission to publish. Suggested length for proposals is 500 words. ACResolution reserves the right to edit or not publish submitted material.

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ACR Special Interest Sections Have you considered joining an ACR Section? Add to your ACR experience by joining one or more Sections. Sections offer opportunities for networking and professional development and provide members with timely information about changes and advances in the practice area through teleseminars, newsletters, and conferences. Join a Section that is in your area of interest today. www.acrnet.org/sections

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Diversity & Equity in ACR By Tajaé Gaynor with Marvin Johnson and Angelia Tolbert

I

t has been my privilege and honor to serve as a Board Member and ACR’s first Diversity & Equity Director since September 2010. As I venture into the midway point of my third year of duty, I am reminded consistently of why the leadership distinction I currently hold is important to the longevity of our membership organization. The Board of Directors and ACR staff have tackled critical issues in recent years, sustaining ACR through challenging times and putting our organization in a stronger position moving forward.

objectives. There is still much left to accomplish, which requires not only continued work by ACR leaders but also support, feedback, suggestions, and involvement by our membership at large.

ACR’s Diversity and Equity policies adopted in 2002 call for Point Persons in leadership positions to ensure Diversity and Equity in communication as well as action. My position, the Diversity & Equity Director, serves as the Diversity & Equity Point Person for the Board itself. More importantly, the policies have set the mark for what we as members should expect There is still much left to accomplish, from and contribute to the organization we choose to belong to. Moving forward, which requires not only continued a concerted effort by all who recognize ACR’s importance to the field of ADR work by ACR leaders but also will continue to be needed to ensure that we persist in grappling with Diversity support, feedback, suggestions, and Equity issues and make certain our and involvement from our organization’s principles are carried out.

As a member of the Executive Committee of ACR’s Board of Directors, my charge continues to be to ensure that when decisions are made and initiatives undertaken, matters of Diversity and Equity are considered. ACR’s Diversity and Equity policy creates a framework that allows me and those who serve as Diversity and Equity Point Persons to I wish to thank Marvin Johnson and membership at large. function in that capacity throughout Angelia Tolbert for collaborating on this ACR’s sections, chapters, committees and article and writing about the Diversity and Equity Policy and its task forces. I am pleased to say that ACR members are fortunate incorporation into the organizational culture of ACR. to have a leadership that exemplifies its commitment to ACR’s Diversity and Equity Policy through its actions. That commitment The Foundation of Diversity and Equity Work in ACR has been evident in the preparation and carrying out of ACR’s annual conferences and in the restructuring of ACR’s membership Next year marks the 25th anniversary of the initial Participatory categories, as well as in the continued inclusion of Diversity and Dialogue on Cultural Diversity in Alternative Dispute Resolution. Equity as an indispensable component of ACR’s yearly goals and This event was initiated by the Environmental and Public Policy Winter 2013

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Section of the Society of Professionals in Dispute Resolution (SPIDR), one of three predecessor organizations to ACR, and an informal group of people of color who were SPIDR members. The event led to a series of dialogues held between 1994 and 1997, which became important starting points for much of the diversity and equity work that takes place in ACR today. Shortly after the merger, representatives of each of the predecessor organizations demonstrated their commitment to diversity and equity by dedicating a leader to serve as a Diversity Tri-Chair. The Diversity and Equity Tri-Chairs were directed to collaboratively continue the work that had been done within the prior organizations and to advocate for additional progress in the merged organization. The Tri-Chairs, Marvin Johnson (SPIDR), Margy Powers (Academy of Family Mediators), and Kathy Bickmore (Conflict Resolution Education Network), worked tirelessly to create new a diversity and equity policy, committee and framework for ACR. With the leadership of the Tri-Chairs, the early work of the Diversity & Equity Committee sought to increase the awareness of diversity and equity issues by providing outreach to and training of the ACR leadership and the Diversity and Equity Point Persons, a Diversity and Equity power point presentation, a template for a Diversity and Equity brochure, a Diversity and Equity Problem-Solving Procedure, a welcome letter and a description of roles and responsibilities for the Diversity and Equity Point Persons, an ACR diversity survey, and facilitated discussions on racism and alternative dispute resolution.

Figure 1

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ACR’s Diversity and Equity Policy Today, ACR’s commitment to Diversity and Equity is a unique and vital part of ACR. Everyone who participates in ACR’s programs and activities is expected to be a part of the diversity and equity endeavor. Broadly defined, diversity includes race, ethnicity, national origin, gender, physical ability, ages and religion, and it extends far beyond that to include (but not be limited to) languages, sexual orientation, economic statuses, educational types or levels, school or organizational locations, and perspectives. Hand in hand with diversity, is equity, which the bylaws define as “recognizing and working to eliminate injustices in access, process, and consequences of ACR’s efforts to strive to meet the needs of diverse members and stakeholders.” On-going self-examination is also a part of the policy as is discussing and implementing fairness and openness in values, procedures, conceptual frameworks and structures. The Diversity and Equity Framework ACR’s Diversity and Equity Policy is carried out through an organizational framework of three components, each of which contains positions of responsibility within ACR: (1) Diversity and Equity Point Persons; (2) Diversity & Equity Networks; and (3) ACR’s Diversity & Equity Committee. This framework is designed to create an intentional focus on diversity and equity to ensure that all parts of ACR reflect a deep commitment not only to increasing diversity and equity within ACR’s leadership and membership, but also to increasing the awareness of diversity and equity issues within society at large.


Diversity and Equity Point Persons

Diversity & Equity Networks

Diversity and Equity Point Persons are key participants in the Diversity and Equity Framework. Every ACR Chapter, Section, Committee, the ACR Board, and any major ACR project must select at least one Diversity and Equity Point Person. Because leadership and leadership development are priorities the same person may not serve simultaneously as a Point Person for more than one group, or as the Point Person and chair or co-chair of a group.

Together Diversity and Equity Point Persons form networks of communication and information. For example, Chapter Point Persons should communicate with each other through a Chapters Diversity and Equity Network, and Section Point Persons should communicate with each other through a Sections Diversity and Equity Network. Knowledge, support, planning and decisionmaking regarding ACR diversity and equity rests within each Diversity and Equity Network. These networks are available for Point Persons to support and mentor each other, collaborate, and partner with each other.

Diversity and Equity Point Persons are responsible for assisting their respective groups with diversity and equity issues and for ensuring that ACR’s Diversity and Equity Policy is actively advanced. Among other things, that means making sure that diversity and equity is a continuous part of the group’s agenda and informs all of its activities, actions, and decisions. They are expected to participate as part of their group’s leadership in activities such as planning and participating in meetings and in the development of the group’s budget. Point Persons are expected to be the diversity and equity “lens, voice and resource” for their constituency and ACR as a whole. As the lens, they exist to define, clarify and establish diversity and equity issues and concerns as a social responsibility objective within ACR. As the voice, their goal is to make diversity and equity a central theme and critical part of all ACR programs. As the resource, they endeavor to make ACR a premier leader and known resource in facilitating and resolving conflict around Diversity and Equity within society.

Diversity & Equity Committee The Diversity & Equity Committee is a standing committee of the ACR board with the authority to select its own Chair(s), leadership and members. As the leadership group of the Diversity & Equity Network, the Committee facilitates communication and collaboration across the Diversity and Equity Framework, helps the Diversity and Equity Point Persons to share information and training resources and helps with scheduling and facilitating meetings and conference calls. The Diversity & Equity Committee is also responsible for conducting surveys and compiling reports to review how well ACR is achieving its Diversity and Equity goals.

A Diversity and Equity Point Person’s role, however, extends beyond serving as a resource for the constituent group by compiling resources and materials and identifying programs for diversity and equity education, training and facilitation. The Point Persons also address diversity and equity through outreach and social responsibility and encourage greater diversity within their group by facilitating inclusion of minorities, people whose first language is other than English, economically disadvantaged people, and other groups who are not yet well represented in ACR. In addition they are expected to perform a diversity and equity assessment of their own group, taking into consideration opportunities created and outreach initiatives undertaken.

In 2003, the Diversity & Equity Committee created an informal Diversity and Equity Problem-Solving procedure. The confidential five-step process allows ACR members or employees to address concerns that directly or indirectly involve diversity and equity issues. The Committee’s intent was to provide a mechanism for early identification, discussion, and resolution of a real or perceived problem in order to prevent it from growing into formal, adversarial dispute. In its ten years of existence, the Diversity and Equity Problem-Solving procedure has rarely been used. The success of such a process is dependent upon leadership support and membership familiarity and understanding. It may be time for the procedure to be updated, formalized, promoted, and adopted by the ACR board.

Finally, Diversity and Equity Point Persons are expected to facilitate and help to resolve conflict around diversity and equity issues within their group, and at the request of the Diversity & Equity Committee, facilitate discussions of diversity and equity issues for other ACR Chapters, Sections, committees or other ACR groups (see Diversity and Equity Problem-Solving Procedure below).

To foster accomplishment of ACR's diversity and equity goals, the Diversity & Equity Committee through the Board Diversity & Equity Point Person, works closely with ACR Board to fully institutionalize ACR's commitment to diversity and equity in its policies and practices. In 2007, the ACR Board reached the following consensus regarding the work of the Diversity & Equity Committee:

Board Diversity & Equity Point Person In recognition of the importance of infusing diversity and equity throughout ACR, in 2010 the ACR Board spearheaded the adoption of bylaws amendments which not only made the Diversity & Equity Committee a Standing Committee, but also created a new officer position, the Board Diversity & Equity Point Person, , who “with assistance from the Diversity & Equity Network, shall be a diversity and equity lens, voice and resource for the Board and Executive Committee, as well as ACR as a whole, seeking to ensure that the Board and Executive Committee are committed to diversity and equity." The Board Diversity & Equity Point Person was made a voting member of the ACR Executive Committee to ensure diversity and equity perspectives in all key organizational matters. (Bylaws, Articles 18 1 (e)), 10.6 and 11.1)

In recognition of the central role of [the] D&E policy to ACR’s mission and role in the functioning of the organization [and] in recognition of the MCOD [Multicultural Organizational Development] assessment which articulates the need to align practices with policy, the Board articulates the need to provide appropriate/ necessary funds to the D&E Committee. The first sentence of Section I(B)(3)(a) of the ACR Policy and Procedure Manual is amended to read as follows: 'ACR is committed to diversity and equity in its budget, membership, structure, and organization work.'

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Diversity and Equity Awards ACR gives two awards in recognition of contributions to enhancing and promoting diversity and equity. The Marvin E. Johnson Diversity and Equity Award honors Marvin E. Johnson, a long-time SPIDR and ACR Board member and champion of diversity and equity within both organizations, as well as throughout the dispute resolution field. This award is given by the ACR organization, and it is presented to an individual or an organization. Recipients are recognized for their outstanding contribution to enhancing diversity and equity with in an area of society, and their dedicated leadership, compassion and passionate advocacy that has contributed to removing barriers or obstacles. Past recipients of the award include Reverend Mpho Tutu (2008); Reverend Nelson Johnson and Joyce Johnson (2009); John and Susan Marks, Search for Common Ground (2010); Navajo Elder James Peshlakai (2011); and Chief Judge Robert M. Bell (2012). ACR’s Diversity & Equity Committee Award is given by the Diversity & Equity Committee to an ACR member for exemplary work in promoting diversity and equity within ACR and advancing diversity and equity initiatives and programs within ACR. Past recipients of the award include Ray Lanier and Ester Soriano (2007), Priscilla Prutzman (2009); Cynthia Alm (2010); and Lou Gieszl (2011). What Can ACR Members Do? ACR members can help to advance diversity and equity within ACR by taking an active role in: • Understanding how diversity and equity is a crucial part of becoming a better conflict resolution professional, educator, or dispute resolver—that valuing and engaging people's differences and similarities is core to the philosophy and practice of conflict resolution • Learning about the diversity and equity issues embedded in the work of ACR and its sections, chapters, and committees. • Facilitating the inclusion of groups that are not yet well represented in ACR. • Regularly evaluating our own effectiveness and continuing to improve ACR’s work in supporting diversity and equity. Conclusion ACR has a long-standing commitment to diversity and equity. The ACR Diversity and Equity Policy has a broad definition of diversity and requires active participation for implementing equity. The responsibility for supporting diversity and equity extends throughout the organization and is based on leadership, education and resource sharing, outreach and advocacy, and self-evaluation. All ACR members are encouraged to actively participate in promoting the ACR Diversity and Equity Policy by learning about how diversity and equity issues are embedded their work and in the work of ACR and its sections, chapter, and committees. Every ACR member can assist with expanding ACR's commitment to diversity and equity throughout the ADR field by broadening their

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own understanding of how diversity and equity is a crucial part of becoming a better conflict resolution professional, educator, or dispute resolver. Resources: Bylaws Association for Conflict Resolution, Inc. (Adopted in 2002 and as amended through August 3, 2012) Diversity and Equity Handbook dated August 31, 2012 ACR Board of Directors Meeting Minutes, March 30–April1, 2007 ACR Policy and Procedures Manual, August 20, 2002 Tajaé Gaynor is the Supervisor School Based Programs and Training Initiatives for Westchester and Rockland Mediation Centers of CLUSTER Inc. He developed a passion for Conflict Resolution over 20 years ago as a Junior High School peer mediator. Since then, Tajae has worked with thousands of young people and adults teaching Conflict Resolution and mediation skills. His commitment to violence prevention earned him national recognition from the Democratic Congressional leadership in 1999. In 2004, Tajaé was honored with the James Boskey Award for outstanding youth leadership from the Association of Conflict Resolution (ACR). He currently serves on the Board of Directors for ACR National and is the first Diversity and Equity Director appointed in the Organization’s History. Marvin E. Johnson, J.D. is the founder and executive director of the Center for Alternative Dispute Resolution, one of the longest standing notfor-profit ADR institutions in the country devoted to the promotion of ADR and to the diversity of the field. He serves on the JAMS panel of resolution experts, is a former board member of SPIDR and ACR, the International Academy of Mediators and the ABA Section of Dispute Resolution. Angelia Tolbert is Founder and President of Absolute Resolution Services, Inc., based in Little Rock, Arkansas, which provides alternative dispute resolution services to court systems, corporations, businesses, federal/state government agencies, industries and individuals. A mediator, arbitrator, and facilitator, she has served as a neutral in disputes covering a full range of issues, including agriculture, banking/finance, business dissolution, real estate, contracts, construction, insurance, employment discrimination, medical malpractice, personal injury, partnership, probate/trust, and securities. She is a member and co-chair of the Diversity Committee of the American Bar Association-Section of Dispute Resolution and a member of ACR’s Diversity and Equity Committee and Commercial Section Advisory Council, as well as a former director and Vice President of ACR.


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Diversity in Mediation: More than Black and White By Bettina Jones

I

human beings—our story, meaning of life, all we know, believe, honor, value, accept and trust. Culture also defines gender roles and religious practice. Culture is more than skin deep.

However, the importance of diversity goes beyond the color of a mediator’s or participant’s skin. In my experience as a mediator, race as such is not what matters -- culture plays a much more fundamental role in mediation. Culture is who we are, how we communicate, survive, behave, learn and live. It is our cumulative experiences as

each participant, I still struggled with reframing their argument. Unfortunately, I was not able to identify with what the participants were actually trying to convey. The color of the mediator soon fades into the background when a mediator encounters a cultural gap in the mediation process.

“Strength lies in differences, not in similarities” – Stephen R. Covey

s the race of the mediator or participants important to the mediation process? When people think about the value of increasing racial diversity in the field of mediation, they often How participants respond in the mediation process depends on have in mind being able to match mediation participants with a their cultural knowledge. The reframing of any conflict depends on racially similar mediator. It may seem obvious that this would be an epistemic and cultural paradigm of life experiences also known helpful in making participants more comfortable with the mediator as culture, that which arguably defines who we are and how we and therefore result in a more effect and perhaps more equitable behave in any given situation as a social determinate. The race of outcome. Race is socially ascribed at the mediator matters much less than In my experience as a mediator, race how well-trained she is to successfully birth to define our exterior identity and how we will belong, be perceived, as such is not what matters—culture mediate cases that are as diverse as judged and treated in our society. the participants who seek her help. plays a much more fundamental For all the enormous damage that Diversity in mediation is definitely role in mediation. racial identification for purposes of more than black or white. discrimination does, race can create a A few years ago, I mediated a minor assault case with two Africanvaluable sense of connection among people defined as belonging to American females. I admit to noticing that the participants seemed a minority race. It seems natural to expect that an African American at ease and very relieved to learn I was their mediator. In fact, one participant would respond positively to an African American participant commented on my African-American race and how mediator, and some research has shown a correlation between surprised they were to see me in my position. As the mediation mediator and participant race resulting in positive outcomes in the continued, I found myself struggling to understand my clients. mediation process. No matter how closely I paid attention and actively listened to

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As I recall, it was a very heated argument and they were both actively engaging in their own form of communication which is where the cultural gap became very evident for me. It was a form of slang and admittedly, finding the right words and understanding the correct meaning were a challenge to say the least. The cultural gap was a barrier to my ability to breakdown the issues to a level that everyone could understand. I understood the conflict involved a minor assault, but the real-life struggles—violence, poverty, substance abuse, betrayal and longtime friendship, were somehow lost in translation. Some of the words they were using I simply did not understand. We had the same brown skin, same gender, yet I could not reframe their issues as I had been trained to do. It was most definitely a humbling experience for me, but also an informative one.

the issues accurately on their level of understanding not mine. Cultural sensitivity and maintaining a level of neutrality and fairness helped me greatly to better help the participants break though their conflict. Instead of requiring the participants to speak my cultural language I worked to understand theirs. This is not to say that being of the same race is never helpful for the mediator. It does help in building rapport, and some aspects of culture tend to be correlated with race. Taking race into account in selecting a mediator may be a useful way to achieve cultural connection between the mediator and the participants (though obviously not in all cases).

But designing any race balance in mediation could impede the process more than benefit it. Once the mediator establishes rapport with the Thinking back, the problem was not so much that I could not participants, the critical part of the mediation process is the mediator’s empathize with their experience and the issues they faced, but ability to engage participants by rather a lack of diversity in my asking poignant and meaningful own cultural experiences mediating Thinking back, the problem was not so questions that evoke honest emotion, inner-city conflict. I struggled to promote dialogue between them, much that I could not empathize with their relate to what I refer to as “streethelp to reframe arguments and peel coded language” and that was an experience and the issues they faced, but away the layers of the conflict, shift important part of helping to resolve rather a lack of diversity in my own cultural the participants’ view of the problem, the case. After much deliberation, and flush out relevant issues to that I stopped the process. I informed experiences mediating inner-city conflict. provide opportunity for resolution. the participants who then conferred That ability does not depend on the with one another as to how they mediator’s race. It is more of a question of the mediator’s cultural would like to proceed with their case. They decided that they competence. Mediators can and should be trained in cross-cultural would like to continue and worked together to help me to better communication so they can work effectively with participants understand their mutual experiences, culture and what they did whose culture is different from theirs. Given a choice between to survive out there and how they got to the point of needing selecting for racial similarity and selecting for cultural similarity, my help to resolve their case. It was a powerful moment in my though, I would usually recommend the second. career. A few months later, I was back in District Court and one Bettina Jones is a trained Maryland mediator and of participants approached me. She informed me that she was glad has a Masters in Conflict Resolution from Salisbury she experienced the mediation and that she now knows how to University in Salisbury, Maryland. She plans to better handle conflicts without fighting. pursue a Ph.D. in Organizational Development. I believe the participant experienced an authentic mediation process where she felt she was respected and accepted. I did not require them to change how they spoke and instead learned the meaning of what was important to them and accepted how they preferred to communicate. That meant no rules for participants, empowering them to respond honestly and be their authentic selves. I reframed

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Roots of Diversity in the Dispute Resolution Field: Some Preliminary Observations by Marvin E. Johnson and Maria R. Volpe

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n the dispute resolution field, as in the larger society, there has been a growing interest in recent years in valuing diversity. There is abundant evidence that dispute resolution practitioners, programs, professional associations, and publications have embraced the importance of diversity, but have also noted that barriers continue to exist. What has been missing in the literature and professional discourse is an understanding of the history of diversity in the dispute resolution field. As a first step in closing this gap, this article will address emergent themes from the initial phase of our exploratory research.1 Since diversity is a very broad, catchall umbrella term that applies to many qualities and characteristics and is defined differently by different segments of society, there is no monolithic “voice of diversity”, including the dispute resolution field. While our research surfaced sensitivities around many aspects of diversity including gender, age, religion, ethnicity, disabilities, and sexual orientation among others, our primary focus for this research has been on diversity as it applies to race.2 Background This research grows out of the authors’ earlier research on barriers to minority participation in the dispute resolution field (Johnson & LaRue, 2009; Johnson & Myers 1997; Volpe, et. al, 2007). Since readily available information on the roots of diversity was limited, it was difficult to contextualize the discussion precisely and completely. As a result, the authors began collaborating to collect data and perspectives about the history of diversity-related efforts 14

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by individuals and organizations in the dispute resolution field in the United States (e.g. see Johnson and Volpe, 2009). We were interested in expanding the understanding of diversity, in examining the conventional wisdom about that history, and in fostering a better-informed discussion about the barriers to diversity in the dispute resolution field. Important for this research is the assumption that each one of us constructs our own social reality and as a result, we all see the world based on our individual context. Hence, it is not surprising that different individuals view the history of any field differently depending on their frame of reference and experiences. For this research, the focus has been on lessons learned from the efforts of individuals and organizations as they endeavored in their own way to understand, promote, or explain the dispute resolution field’s past with respect to racial diversity. We intentionally focused on those whose voices, perspectives and experiences are not typically included in historical writings. Although knowledge exists about diversity efforts in the dispute resolution field, it is scattered and not readily accessible. With much effort, one must search websites, newsletters, obscure journals, and other places that are not readily available to scholars, practitioners, policymakers, program administrators, or the public. None of the mainstream journals in the dispute resolution field, law or the social sciences have covered the evolution of diversity-related developments in a comprehensive and systematic fashion. The information that does exist is often fragmented and does not address concerns like the nuances of what happened when, who did what, why some


situations were groundbreaking, what issues surfaced at different points, and so on. Moreover, as those who lived during the earlier days of the dispute resolution field begin to pass on or retire, the opportunity to document their first hand reflections and experiences about the diversification of the field is diminished or lost.

that information about the roots of diversity could be gained by expanding our research to include respondents who had an understanding of diversity-related issues or had spent many years working on them in professional associations, in their geographic region, or through publications.

Emergent themes As is often the case, research can provide tremendous insights, but also raise countless questions. We have been learning a lot about Drawing from our review of documents and our analysis of the when a diversity lens begins to emerge for the dispute resolution interviews, we have seen several themes emerging about the roots of field and have identified many of the milestones. We have examined diversity in the dispute resolution field. There can be vast differences archives and conducted interviews that have yielded important about how the past is perceived and as a result, some of the themes insights about how diversity has been framed in the past and how may seem contradictory. However, once one peels away and understands that each one of us it could be reframed to better understand contemporary and For this research... we intentionally focused constructs his or her social reality based on his or her experience and future diversity efforts. on those whose voices, perspectives and knowledge, it makes sense that This research is a work in progress. everyone does not view the field’s experiences are not typically included in The more we learned, the more past the same way. we realized we needed to learn. historical writings.... The over-arching question What follows is first an overview It has raised as many questions guiding the interviews was this: of some of the highlights of the as it has answered. It has surfaced many of the issues that have In reflecting on diversity in the dispute resolution efforts to infuse diversity in the dispute resolution field over been identified in the past, but field as you have known it, what can you share the years and then an effort to that have remained below the identify some of the emergent with us about your experiences? radar screen since they have not themes we uncovered. been sufficiently addressed as major policy initiatives or published in mainstream publications. Given the dearth of systematic research on diversity in the dispute Diversity-related efforts: Historical resolution field, there is a pressing need to continue the unearthing highlights of diversity’s roots of information to reveal how diversity in the dispute resolution field The growth and development of the dispute resolution field itself has been transformed from a private matter to a public concern. have brought many changes that impacted the diversity of the field For example, at one of our conference presentations, in response to (e.g. see Coffman, 2008). Until the late 1970s, the field had been a comment by a white attendee questioning the importance of this dominated by the labor context (e.g. see Barrett & Barrett, 2007). research, a young ADR practitioner of color stated how important Once the field started expanding, not only was there greater diversity it was for her to know the history of diversity in the field and to of practice, but also greater involvement of people of color. For know that there were other people of color who paved the way on instance, one of the professional organizations that best exemplified her behalf. this transition was one of the organizations that later merged to Methodology The exploratory research discussed in this article has included two methods for collecting data: [1] secondary data analysis that involved examining countless documents that are buried in personal collections and in the organizational archives of dispute resolution organizations as well as searching websites and other sources of primary data like newsletters, memos, informal records, etc. and [2] use of semi-structured open-ended questioning to conduct interviews with selected dispute resolvers we identified as potential contributors to this body of knowledge. The over-arching question guiding the interviews was this: In reflecting on diversity in the dispute resolution field as you have known it, what can you share with us about your experiences? A set of eight questions was developed to explore the subjects’ knowledge of diversity. The interviews were conducted in person, on the phone, and by email using a convenience sample of conflict resolvers knowledgeable about diversity in the dispute resolution field and known to the researchers. To date, twenty interviews have been completed with individuals whose time in the field spans up to sixty years. As we progressed during the interview stage of the research, we found

create ACR, the Society of Professionals in Dispute Resolution (SPIDR) founded in 1972. The few people of color who attended the annual SPIDR conferences in the late 1980s and early 1990s began meeting informally at the conferences to identify legitimate issues around diversity that they felt the organization’s leadership needed to address (Johnson, 1995; Johnson, 1997).

Although the American Arbitration Association (AAA) was founded in 1926, contemporary dispute resolution efforts in the U.S. began to occur in the 1960s with the creation of the Civil Rights Act and the creation of US Department of Justice Community Relations Service (CRS). CRS mediators and conciliators were employed to address potential and actual interracial and interethnic disputes. The field blossomed in 1976 with Frank Sander’s speech at the Pound Conference on “The Causes of Popular Dissatisfaction with the Administration of Justice” often seen as “big bang” moment in ADR history which envisioned the “multi-door” courthouse (Moffitt, 2006). Thereafter, community mediation centers began to emerge in numerous US cities. We have compiled a sampling of the emergence of diversity-related efforts over the years. By no means is it an exhaustive list and it will be expanded in the next phase of our work. (See Figure 1). Winter 2013

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Context is important One of the most salient themes identified has been the important role of context in understanding diversity. As we noted earlier, individuals construct their own social reality and see the world based on their perspectives. How the diversity of the dispute resolution field has been seen over the years depends on the dispute resolvers’ particular experiences. For example, those who began as mediators, particularly in the distant past, found the field really lacking in diversity and few mediators of color. This was particularly true for those who worked in organizations or served on rosters that provided dispute resolution services. And yet, this was not always the case for those who had a different introduction to the field. Those who entered the field through historically black colleges, community mediation programs, early peer mediation programs or as community workers in community based agencies, reported that their experiences were predominantly with people of color at the local or street level. As the field has become more “professionalized” or as they moved on, they found the field to become whiter. Even when individuals entered the field in a context composed of mostly people of color, trainers who did not look like them, more often than not, conducted their initial training. Geographic region is noteworthy Geographic area seems to have played a significant role in the respondents’ experience with diversity. For those who were doing dispute resolution related work in geographical areas or in organizational contexts where there were few people of color, they reported using several approaches to engage in dispute resolution work with people who were not like them. Among the recognizable approaches were connecting with national networks, relying on professional conferences to establish linkages with others with whom they shared race, and assimilating in the local community to build relationships in order to minimize race. In geographic areas where there have been limited dispute resolution opportunities, the challenges were even greater for people of color. Reliance on national networks, rosters, and professional organizations were paramount, and many practitioners were able to do dispute resolution work only part time.

Lack of information about dispute resolution in the minority community Historically, people of color have not been consumers of dispute resolution for fees. Respondents reported that, as a result, there has been less of a market for practitioners of color over the years. One noted, “once people of color start to see us as a viable option, then I think some of that shift will start to happen.” The sentiment was that, “As professionals in the field now, we need to make sure that the people within our culture and race are educated about what the field of ADR is and how it may be useful for them regarding the situations that they are dealing with.” The lack of information about the field, in addition to the widely recognized challenges posed by the limited opportunities for compensated employment, has also had implications for involvement by young people of color. Since they have not had accessible role models in the dispute resolution field, it has not been a field of interest as a career path. One respondent noted that s/he does not encourage people of color to enter the field but rather to utilize the skills used by dispute resolvers and learn how to be effective problem solvers. The end result is that the loss, lack, or absence of interest by young people has contributed to the low representation of people of color in the dispute resolution field. Qualified, but.... Research participants reported that what was different about their experience more than thirty years ago was that, outside of the few organizations that were tasked with resolving disputes, entry into the field was more through mentorship or on the job training than training. The training that existed was often free and provided by community mediation programs. A constant refrain that the research participants heard was that people did not know what to do to increase diversity in the dispute resolution field, that they had tried to find minorities but couldn’t find minorities who were interested and qualified, and that people of color did not have the right backgrounds for the work they had. They heard that recruiters couldn’t find people with experience in their fields, that most new entrants only had experience in community or neighborhood disputes.

Figure 1: Diversity-Related Efforts Over the Years

1952, Federal Mediation and Conciliation Service (FMCS) hires its first mediator of color. 1975, First class of FMCS Women and Minorities Mediators is held. 1983-1995, AAA internship program is created for the Black Law Students Association (BALSA). 1984, SPIDR begins awarding The Willoughby Abner Award to recognize individual and organizational work in public sector employment dispute settlement that involved research, writing or reflective practice. Bill Abner, as he was known to colleagues, was an African American who served as Director of the AAA’s National Center for Dispute Settlement (NCDS) and as a federal mediator and special assistant to the agency director in the FMCS national office in the late sixties (Barrett, 16

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n.d.) For all the dispute resolvers in the large conference ballrooms where the Abner Award was given, Bill’s race was generally not identified.3 1984, National Association of Mediators in Education (NAME) is created. It became the Conflict Resolution Network (CREnet) in 1997 and always included youth of color, had a broad diversity outreach, and had facilitated discussions on racism. 1986, AAA, Hofstra Law School, and Cornell University, with New York State funding, creates a minority labor arbitrator development program. 1986, First dispute resolution center in the Maryland State University System and at a Historically Black University, Bowie State University, is started by then Professor Marvin E. Johnson.


Research participants reflected on the unique challenges they experienced entering the field. First was the recurrent need to prove that one was qualified despite level of experience or knowledge of the field. For one of the early training programs for minorities, a respondent stated, in order to be recommended, “one had to be a leader in the community and you had to hold responsible positions, a very high bar for minorities.” The respondent noted that “there were (whites) who had taken the training, had been accepted, but they did not have the level of standing in the community, nor did they have to go through that screening process.” Responses to diversity challenges: Resignation, fighting, hoping for allies or imagining collaboration Respondents reported several responses to diversity-related challenges. The first was resignation. They knew of individuals who had tried entering the field, got turned down, were disappointed, and gave up trying. People said, “It is what it is and I just decided not to deal with it or moved on to something else or accepted it for what it is.” The second response was to pursue diversification not only for themselves, but also for others. One respondent remarked that there were those who said, “I had to find a way to fight through [the challenges]; not just for myself, but for those who will come behind me.” The third response was hope for allies. One respondent recalled that at meetings, “When XX would speak, quite often there would be no response to what he said or no integration of what he said into the conversation.” When a white male would repeat what XX said, people would respond to him. Overall, what often became apparent was that the attendees at the meetings revealed little sensitivity by either ignoring the voices of minorities, or as a result of the process of reframing and paraphrasing, took credit for the ideas initially presented by the minorities at the meeting. Finally, the individualist culture that has dominated American society has also played a role in how diversity has been viewed historically and has contributed to the lack of diversity of the field. One respondent made a strong case for thinking beyond our individualistic culture and for intra and inter-racial collaboration. This respondent noted that “we are so obsessed and possessed by individual success and achievement, or what we think that means,

that we don’t want to share.” For instance, in an individualistic culture, after a training program, it often means “every man for himself.” If people collaborated and shared more readily, the field would benefit from being more inclusive. Diversity met with benign neglect and perceived repetitive cycles of inaction When people of color spoke about diversity to others in the past, their concerns and experiences were perceived to have been met with benign neglect, ignored, or paid less attention. They felt that there was little appreciation about the challenges they had to overcome or the need to increase the number of people of color or minorities in the field beyond neighborhood/community or peer mediation. The view was that practitioners in income-generating areas like commercial, public policy and family mediation were not interested in increasing competition. In short, diversity was not perceived to be a concern. Minorities reported that the lack of diversity was addressed in a haphazard fashion. For example, diversity issues seemed to be raised repeatedly at conferences that they attended, rather than as “something that should be (a focus) all of the time. Most people pay lip service to the goal of diversity, but it does not seem to be an actual priority for very many people.” Moreover, after conversations have occurred, there is no way of knowing what happens once one leaves a conference. As a result, it is not surprising that many of the same issues that have recently been raised about diversity in the field have been discussed for decades. The likeability factor and comfort level Race relations remain challenging for American society, particularly in providing opportunities for easy mingling between races. The less integrated the society, the less well-known people are to others. The more underexposed individuals are to others who are different, the more challenging it is to gain entre into the others’ world, particularly, those who are responsible for selecting mediators and arbitrators. Moreover, not understanding another’s cultural experience can play a role in how one is accepted by the parties. (e.g. see LaRue, 1991). As one respondent noted, “You can’t know what you don’t know and you can’t know what you haven’t been exposed to doing.”

Figure 1 (Continued): Diversity-Related Efforts Over the Years

1988, SPIDR Environmental & Public Policy section, begins a dialogue that raised questions about the lack of diversity in the section. 1988, SPIDR Conference: First People of Color Meeting is held. 1993, American Bar Association Dispute Resolution Section (ABA DRS) is created and establishes a Women and Minorities Committee. Two of the six section officers were people of color. 1994, National Association for Community Mediation (NAFCM) is established as an association of community mediation centers, many of which have diverse panels of mediators. 1994-97, SPIDR Participatory Dialogues on Cultural Diversity are held. 1995, ABA DRS receives an Honorable Mention Award for diversity efforts from the ABA Commission on Minorities and Women.

Mid 1990s, Academy of Family Mediators (AFM) establishes a Diversity Committee to increase diversity in its membership and increase awareness of diversity issues. 1995-96, Mediators of Color Alliance (MOCA) is created as a formal mediators of color network providing a vehicle to connect, develop relationships, discuss issues, develop mentorships and role models and obtain ADR opportunities. It grew from informal discussions people of color had during SPIDR conferences in the late 1980's - early 1990's, and the Participatory Dialogues on Cultural Diversity in ADR that began in 1994. 1996, SPIDR Board highlights the importance of building a “diversity lens” and diversity awareness for the organization’s culture, its activities (e.g. diversity statement required for conference proposals), policies, personnel, and structures. Winter 2013

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Since dispute resolution processes often place the parties and the intervener behind closed doors in an informal, confidential context, people prefer people they know and/or who are like them. It is a very personal experience. Practitioners cannot succeed without extensive networking or introductions by those who are known to the gatekeepers or the decision makers in charge of selecting mediators.

1988 when appointed to the AAA panel, there were 22 AfricanAmericans on a roster of 3000. In addition, the early literature in the dispute resolution field was void of any reference to diversity (e.g. see Hairston, 1999). Research participants reported not being able to find any literature devoted to understanding the role of race in the dispute resolution field. In fact, an interviewee for the Beyond Intractability project stated that “people of color or others who were marginalized would ask … who are some people in my community who have a point of view on this? What do they have to say?" (Bowland, 2003). More recently, a body of literature has been emerging recognizing the historic underutilization of minorities as neutrals in a variety of contexts (e.g. see Green 2005; Hoffman & Stallworth, 2008; Johnson & LaRue, 2009; Volpe, et. al, 2007; Weatherspoon, 2006).

One of the respondents referred to the impact of the ‘likeability factor.’ Gatekeepers tend to select people they are familiar with, so if they are not familiar with people of color then that will limit the possibilities for minorities to get selected. The more likeable one is, the easier it is to be selected. The challenge here is to deconstruct likeability for others whom one is not familiar with. Is it attire, appearance, gestures, diction, accent, etc? When it is identified, Practitioners cannot succeed without extensive it is also painful to hear why one networking or introductions by those who does not fit in. In one instance, a person of color who had been are known to the gatekeepers or the decision a dedicated organizational leader makers in charge of selecting mediators. . was informed that s/he was not reelected to a leadership position . . Gatekeepers tend to select people they because of the way s/he spoke and are familiar with, so if they are not familiar that no one understood him/her.

At early dispute resolution conferences, there was no focus on diversity and few minority attendees. When minority attendees found an established colleague of color at a conference, there were possible unintended benefits at their own workplace. For example, one described the with people of color then that will limit the One respondent reported that consequence as having a ‘halo’ at a conference, a colleague paid possibilities for minorities to get selected. effect, that is, the ability to acquire the respondent what he thought credibility as an ADR professional was the greatest compliment that he could when he said, “I was a at his or her place of employment by virtue of noting an association consummate professional and I was the least Black person he had with others of color who were established figures. The respondent ever met who was Black.” The respondent noted, “I knew exactly stated that the efforts of Center for Dispute Resolution in Maryland what he meant by that. He meant that I was “professional” and, in and its annual conference expanded the respondent’s own perspective his mind, a “professional” meant that I was articulate because I could of the opportunities and place in the field. command the language. He meant this as a dead-on compliment.” Recurrent themes: The field is not very diverse and the issues remain unchanged A recurrent theme about the early days in the field is that people of color were hard to find (e.g. see Skelton Roberts, 1996/1997). Research participants recall being the only one in the room, even more so than today. Professional organizations and rosters had very few people of color. One research participant recalled that in

In more recent times, one respondent noted that when the National Conference for Minority Professionals was held at Capital University Law School, women and people of color found a particular space where they could talk and become aware of mentoring possibilities, ways of entering the field, and more opportunities for minorities in dispute resolution. We found that many of the issues raised about diversity in the field have been discussed for decades. Those who have a long view of

Figure 1 (Continued): Diversity-Related Efforts Over the Years

1996, ABA DRS renames the Women and Minorities Committee as the Diversity Committee

2001, ABA DRS begins requiring a diversity statement for conference workshops.

1997, The Center for ADR in Maryland creates Practical Dispute Resolution, a journal for diverse practitioners writing on diverse ADR topics.

2001, The Center for ADR in Maryland creates the Harold Davis Award for an outstanding minority ADR practitioner. Harold Davis was one of the first half dozen minority mediators hired by FMCS. He worked with Bill Abner at NCDS and was instrumental in expanding mediation to non-labor sectors of society.

1997, SPIDR Board passes SPIDR’s first Diversity Policy and a Standing Diversity Committee was established. 1999, AFM conducts its first diversity survey. 2001, ACR establishes a Diversity and Equity Network to implement its commitment "to diversity and equity in its membership, structure, and organizational work” and “to encourage and promote…. participation, accessibility, active representation leadership from diverse populations …. including race, etc.” 18

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2001, FMCS and the National Bar Association sponsors Labor Arbitrator Training for minorities. 2001, Practitioners Research and Scholarship Institute (PRASI) is created to encourage writers, particularly people of color and those underrepresented in conflict resolution, to produce new literature on diversity. SY Bowland and Beth Roy, among others, served as initial conveners of PRASI.


the field recounted how the same topics seem to come up over and over again. For example, recruitment, hiring, selection, retention, training, succession planning, which have been discussed repeatedly over the years, have to be dealt with comprehensively and in a sustained way with deliberate intention, including a benchmark and milestones. The measures have to occur regularly over a sustained period of time. Change will not happen on its own. There is a pressing need to capture the discussions in mainstream publications and transform them into policy and practice. Research limitations and challenges This research represents a first step in collecting data and perspectives to understand the roots of diversity in the dispute resolution field. Drawing generalizations from this exploratory research presents the risk of premature or even contradictory conclusions. We hope that our effort will stimulate the discussion further and help to clarify how the field has been viewed. There are numerous limitations and challenges to this research. Among them are the following: (1) Small sample size: We experienced resistance from subjects in a number of ways including the following: (a) Reluctance to sign an informed consent form: While the informed consent is designed to protect subjects, some felt threatened by the mere fact that they had to sign off on a Consent Form. (b) Personal histories: For the elders of the minority community who had learned how to survive by working within systems and not making waves, speaking to researchers did not feel safe. (c) Time constraints: Several individuals who had extensive knowledge about diversity informed us that they did not have time to participate. (2) Lack of data to track demographics of the dispute resolution field: Since there is virtually no readily accessible data on who is involved in the field, it is next to impossible to track developments. It is common to rely on convenience samples and snowballing techniques to identify who is doing what. (3) Scattered resource materials: The resource materials on diversity are scattered in obscure places. There is no easy way to access the

details of whatever has occurred or any information that has been amassed over the years. Conclusion In many ways, the dispute resolution field is a microcosm of the larger society where diversity has been and continues to be a hard conversation. One respondent described diversity as “a very sensitive and chronic problem.� Examining the history of a field is important because it is defined differently based on the perspective from which it is viewed, experienced and expressed. For dispute resolution, understanding diversity efforts is complicated by the very nature of the work undertaken by its professionals. Much of the dispute resolution work is informal, private, confidential, and occurs behind closed doors. These factors militate against the kind of open sharing of information often needed to create a welcoming context for those who might be interested in the field. While everyone involved in the dispute resolution field has some experience with the challenges of its notorious vague career paths and reliance on relationships, the challenges are even greater for those who have historically had even less access to information and to networks. This article is a first step in chronicling many of the efforts that have been undertaken and the themes emerging from the experiences of those who have shared their work and thoughts. Certainly a tremendous amount of research remains to be done to further our understanding of diversity in the dispute resolution field. If anyone has information that could be included to help create a more accurate and complete history of the roots of diversity, we strongly encourage you to contact the authors. References Barrett, J. (n.d.). A brief history of the Willoughby Abner Award. Unpublished paper. Barrett, J. & Barrett, J. (2004). A history of alternative dispute resolution: The story of a political, social, and cultural movement. San Francisco: Jossey Bass. Bowland, SY. (2003). Beyond intractability. Interview with

Figure 1: Diversity-Related Efforts Over the Years

2002, ABA DRS adds a pre-conference Forum on Expanding Opportunities for Women and Minorities in Dispute Resolution for 2003 conference program.

LaRue with funding from the Hewlett and JAMS Foundations in cooperation with the ABA DRS and the International Academy of Mediators.

2002, The Center for ADR in Maryland creates the James E. Jones Award for outstanding contributions to diversity in the ADR field. James E. Jones, a University of Wisconsin Law Professor, was one of the contributors to the concept of affirmative action while he was an attorney at the Department of Labor.

2003, AAA publishes its Commitment to Diversity.

2002, National Conference for Minority Professionals in ADR is started by Professor Floyd Weatherspoon of Capital University Law School in Ohio.

2006, AAA creates a Diversity Committee.

2003, ACCESS ADR, an initiative to increase the number of ADR professionals from under-represented ethnic and racial groups in the ADR field, is started by Marvin Johnson and Homer

2005, New York State (NYS) and New York City (NYC) Bar Associations launch a dialogue titled "Expanding the Pledge," which attempted to increase awareness for diversity in the NYS and NYC ADR profession. 2006, ACR conducts an internal Diversity Competence Assessment 2006, ACR’s Environment and Public Policy creates a Diversity Mentoring Pilot Project. Winter 2013

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Juan Portilla. Retrieved from http://thegovernancecommons. beyondintractability.org/audiodisplay/bowland-sy Coffman, J. (2008). American Arbitration Association’s commitment to diversity. Dispute Resolution Journal, 63 (1), 30-34. Green, M. (2005). An essay challenging the racially biased selection of arbitrators for employment discrimination suits. Journal of American Arbitration, 4(1), 1-57. Hairston, C. D. (1999). African Americans in mediation literature: A neglected population. Mediation Quarterly, 16(4), 357-375. Hoffman, D. & Stallworth, L. (2008). Leveling the playing field for workplace neutrals: A proposal for achieving racial and ethnic diversity. Dispute Resolution Journal, 63 (1), 36-46. Johnson, M. E. (1995). Report from participatory dialogues regarding cultural diversity in alternative dispute resolution, SPIDR Annual Conference 1994 and 1995. Johnson, M. E. (1997). Second report from participatory dialogues regarding cultural diversity in alternative dispute resolution, SPIDR Annual Conference 1996 and 1997. Johnson, M.E. & LaRue, H. C. (2009). The gated community: Risk aversion, race, and the lack of diversity in mediation in the top ranks. Dispute Resolution Magazine, 15 (3), 17-20. Johnson, M.E. & Myers, E. (1997). A national dispute organization focuses on diversity. Practical Dispute Resolution, 1(1), 28-29. Johnson, M. E. & Volpe, M. R. (2009). (Eds.), Special issue on diversity: Uncovering race in dispute resolution. Dispute Resolution Magazine, 15(3). LaRue, H. C. (1991). The ethics of disclosures by arbitrators of color: Have the rules changed? Labor Law Journal, 42(9), 619-634. Moffitt, M. (2006). Before the big bang: The making of an ADR pioneer. Negotiation Journal, 22(4), 437-443. Skelton Roberts, M. (1997). Why does the field lack racial and ethnic diversity? A practitioner's search for answers. Practical Dispute Resolution, 1(1), 25-27. (Reprinted from Consensus, 1996). Volpe, M. R., Bush, R. A. B. , Johnson, Jr. G.A., Kwok, C. M., TudyJackson, J., & Velez, R. (2007). Barriers to participation: Challenges

faced by members of underrepresented racial and ethnic groups in entering, remaining, and advancing in the ADR field. Fordham Urban Law Journal, 35 (1), 119-145. Weatherspoon, F. (2006). Eliminating barriers for minority ADR neutrals. ACResolution, 5(1) 32-35. (Endnotes) This research was conducted with grants from The JAMS Foundation and the Office for the Advancement of Research at John Jay College of Criminal Justice – City University of New York.

1

This research was narrowly constructed for two reasons. First, the lack of focus on race in the dispute resolution literature made this research compelling. Second, the funding received for this roots of diversity research was insufficient to expand the inquiry to all of the other very important aspects of diversity.

2

The Willoughby Abner Award was awarded by SPIDR from 19842000, then by its successor ACR until 2006. Thereafter, it was presented at the alternating year FMCS National Labor Management Conference until 2008 when it was phased out (Barrett, n.d.).

3

Marvin E. Johnson, J.D. is the founder and executive director of the Center for Alternative Dispute Resolution, one of the longest standing notfor-profit ADR institutions in the country devoted to the promotion of ADR and to the diversity of the field. He serves on the JAMS panel of resolution experts, is a former board member of SPIDR and ACR, the International Academy of Mediators and the ABA Section of Dispute Resolution. Maria R. Volpe, Ph.D. is Professor of Sociology, Director of the Dispute Resolution Program at John Jay College of Criminal Justice - City University of New York, and Director of the CUNY Dispute Resolution Center. She is an Editorial Board Member of Conflict Resolution Quarterly, served on the ACR GNY Board and as a member of ACR's Diversity and Equity Network, and received the 2010 ACR GNY Achievement Award. She is a pastpresident of SPIDR.

Figure 1: Diversity-Related Efforts Over the Years

2006, The International Institute for Conflict Prevention & Resolution (CPR) creates a National Task Force on Diversity in ADR "to advocate the greater use by corporations of diverse, nationally prominent mediators, arbitrators, advocates, counselors and other participants in the ADR profession; and to make [the] CPR Institute more welcoming to member CPR Task Force publishes and disseminates its ADR Diversity Survey. 2007, The Center for ADR in Maryland establishes the Gregory Sobel Diversity Scholarship as a tribute to accomplished mediator Gregory Sobel who passed on April 5, 2005. Greg was a tireless advocate for increasing diversity in the ADR field. The scholarship was funded by a generous donation from Greg’s estate. 2008, ACR creates the Marvin E. Johnson Diversity & Equity Award, presented annually to recognize a sustained, outstanding contribution or a specific extraordinary achievement by an individual or organization that has enhanced diversity and equity within an area of society. The award honors Marvin E. Johnson, a long-time SPIDR and ACR Board member and champion of diversity and 20

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equity within both organizations as well as throughout the dispute resolution field. 2008, Publication of PRASI’s Re-Centering Culture and Knowledge in Conflict Resolution Practice, edited by Mary Adams Trujillo, S.Y. Bowland, Linda James Myers, Phillip M. Richards, and Beth Roy by Syracuse University Press. 2009, ABA DRS Dispute Resolution Magazine publishes a special issue on “Uncovering Race in Dispute Resolution,” edited by Marvin E. Johnson and Maria R. Volpe 2009, CPR creates the CPR Award for Outstanding Contribution to Diversity in ADR 2009, AAA creates the A. Leon Higginbotham, Jr. Fellows Program “to provide training, mentorship and networking opportunities to up and coming diverse ADR professionals.” The program is named in honor of Judge A. Leon Higginbotham, Jr., a prominent African American civil rights advocate, author, and federal appeals court judge.


The E in D & E by Bill Stempel

A

CR has made a commitment to diversity and equity a central part of its culture from the time of the organization’s creation in 2001.

openness in our values, procedures, conceptual frameworks, and structures. All persons participating in ACR programs and activities are a part of this endeavor.

ACR’s bylaws devote Section 3.4 to a statement of the organization’s policy:

The bylaws also establish a Diversity and Equity Committee as one of ten standing committees, and make it “responsible for ensuring that all aspects of ACR reflect its deep commitment to increasing diversity and strengthening equity within the Association and the conflict resolution field.” (Bylaws Section 18.1(e).) In addition, each ACR committee, task force, chapter, and section is expected to have at least one Diversity and Equity point person to oversee the implementation of the policy, and to report annually to the standing committee on its activities to support its commitment to the Diversity and Equity Policy. The Marvin E. Johnson Diversity & Equity Award is one of only five awards given annually by ACR for distinguished contributions to the field.

(a) ACR is committed to diversity and equity in its membership, structure, and organizational work. A culturally diverse organization is one that recognizes, supports, values, and utilizes people’s differences and similarities in support of the organization's goals and objectives. Equity means recognizing and working to eliminate injustices in access, process, and consequences of ACR’s efforts to strive to meet the needs of diverse members and stakeholders. (b) ACR seeks to encourage and promote participation, accessibility, active representation, and leadership from diverse populations including, but not limited to, races, ethnicities, national origins, languages, genders, sexual orientation, economic statuses, school or organizational locations, physical abilities, ages, religions, educational types or levels, and perspectives. Further, ACR actively implements equity and affirms diversity in its work, including its publications and standards, and in its board, staff, programs, chapters, sections, and committees. (c) In order to promote diversity and equity in ACR and the conflict resolution field on-going self-examination is essential. We are committed to discussing and implementing fairness and

ACR’s stated commitment to diversity and equity is thus both strong and prominent. I believe most members share a sincere and deep belief in the importance of the commitment. But for such a commitment to be meaningful, it must guide our actions and not merely offer a gesture of aspiration (or an occasion for selfcongratulation). It’s very difficult to know what to do in pursuit of our diversity and equity goals, or how to tell if we’re making progress, if we don’t have a clear understanding of what we mean when we use these the terms. I think we need a clearer understanding of the equity part of the commitment, and this article is intended as a first step toward clarity. Winter 2013

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When ACR members think and talk about diversity and equity, much of our focus is on diversity. That is true not only of ACR but also of other organizations with similar commitments. The reason, I suggest, is that diversity is an easier concept. We know what we mean by diversity, more or less. We usually have some ideas about what we can do to advance it, although we don’t always implement those ideas effectively. Most of us find it easy to say why diversity is a good thing. We don’t feel any conflict between advancing diversity and advancing our other values as conflict resolution professionals.

equity); or educational opportunity, resources, facilities or outcomes (all of which can be called educational equity). Which if any of these are relevant to ACR’s commitment? I propose an answer that can be seen as a realistic refocusing—or perhaps as quibbling or copping out. My answer is that ACR doesn’t actually have a commitment to equity in general, and we should consider modifying our policy language to recognize that. We have a commitment to diversity-and-equity as a combination. We need to look at what equity means in connection with diversity, which requires us to return to the supposedly easier concept of diversity.

In fact, our dedication to diversity as practitioners, as a professional field, and as an organization, really reflects our core approach to It seems to me that we value diversity based on the recognition conflict. Our practice is built on the idea that different people may that different perspectives enrich us, and that none of us is as smart have different interests that are equally valid. We encourage parties (or experienced, or sensitive, or imaginative, or wise) as all of us. to look at multiple perspectives, to stand in each other’s shoes, to be But unless we’re talking about identical quintuplets, any group of open to ideas that may be foreign to them initially. Our neutrality and people is diverse in some respects—indeed, diverse with respect to our commitment to party autonomy harmonize beautifully with an as many qualities as we wish, depending on how thin we slice things. open, welcoming, nonjudgmental We find some kinds of diversity appreciation of the value that If diversity is easy to understand, though, more relevant than others. And diversity contributes to our work. that, of course, is because ACR

equity is hard. It's difficult to define what equity

If diversity is easy to understand, operates in a culture and against though, equity is hard. It’s difficult means, and unsatisfying to say merely that we a history that has been decidedly, to define what equity means, and determinedly non-diverse and know it when we see it. unsatisfying to say merely that we inequitable, especially with respect know it when we see it. This definitional slipperiness is not limited to racial classification, the main purpose of which has been to justify to ACR by any means. Many writings in the field of education, different (inferior) treatment of those with certain differences from where diversity and equity is a major subject of discussion, focus the majority.1 The lack of diversity in the professions, and in most on what equity is not (in particular, saying that equity is not the or all other high-status activities, has been the result of intentional same as equality, at least in any mathematical sense). Statements injustice. Things have changed, but not enough. in education and in other fields also often resemble the statement It is worth noting that the conflict resolution field, as represented by in the ACR bylaws, which has a definition-like form but really ACR and its predecessor organizations, did not always recognize the describes an activity (“equity means recognizing and working to importance of diversity. Diversity was established as an important eliminate injustices”) and transfers the burden of meaning to the principle only through a campaign by members of the organization undefined word “injustices.” (including some of the authors of articles in this issue of ACResolution In fact, it seems to be rather common to define equity by substituting another undefined word like fairness or justice. Philosophers have been debating the meaning of justice for as long as there have been philosophers. Saying that equity means justice or that equity means fairness doesn’t tell us with any clarity what equity means. In addition, do we really consider equity synonymous with fairness or justice? If ACR’s commitment was to “diversity and fairness” or “diversity and justice” would that mean the same thing? To me, fairness implies that we’re talking about process, and perhaps only conformity to procedural rules. If fairness is too small a concept for our purposes, justice seems too big, carrying as it does an aura of moral righteousness. This is not to say that the terms have no meaning—in fact, my problem with the common definition is that I think the three terms have rather different meanings, at least in many contexts. Assuming, though, that we can distinguish the just from the unjust, we might say that equity means a state of affairs in which the distribution or allocation of certain social or economic goods is just (or fair or right). But which social and economic goods do we consider? In a broader societal context equity might involve economic resources (economic equity); access to political power (political equity); equal treatment under law (legal equity); geographical distribution of environmental burdens (environmental 22

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Magazine). That campaign succeeded in part because it linked racial diversity and equity, making clear that inequities existed and that they were connected with the failure to embrace diversity.

I suggest that for ACR’s purposes “equity” in “diversity and equity” primarily means equity with respect to differences that have in the past been the basis for unjust treatment of those perceived to be different. When we talk about diversity, we don’t mean just diversity—we mean diversity that is just, in recognition of the fact that the absence of diversity has often been unjust. We should make that our priority and be explicit about it. Many ACR members and others in our field are dedicated to the pursuit of economic, political, environmental, and social justice. They should, of course, continue that valuable work. ACR’s focus on equity is connected to diversity rather than other issues of justice, not because the other issues aren’t important, but because that focus strengthens the organization and increase the change that our efforts will be effective. What exactly should ACR’s commitment call on the organization and its members to do? On a basic level, we need to recognize existing and potential injustices and take care not to create new injustices or contribute to the perpetuation of existing ones. Where

1 I use the term “racial classification” rather than “race” because, even if race is a valid biological concept, which is dubious, mistreatment of people of color has generally been based on a yes-no, white-black categorization rather than any examination of actual personal characteristics or background.


we can be effective, we should extend our efforts and work to reduce or eliminate existing injustices. We need to be aware that injustice can arise in both process and outcome or consequences. I would distinguish three contexts in which we operate: 1. What ACR does with and for members, including the programs, opportunities to participate, and opportunities for leadership it offers. 2. What we do with respect to the field of conflict resolution 3. What we do with respect to the rest of society In the first two contexts ACR should be committed to both the basic and the extended actions. But, in the third, I propose that we confine our commitment to the basics. Advancing justice in the world generally, desirable though it is, is beyond our scope as an association and as a professional field. However, we can and should at least make sure we don’t make the world more unjust than it already is. In summary, I believe ACR should strengthen its commitment to diversity and equity, and should do so by focusing on the highest priority and the contexts in which we are able to be most effective. I offer the following for discussion (vigorous discussion, I hope) as

a statement that reflects the commitment I think we should have: ACR is committed to equity in all its activities, and will give priority to achieving equity with respect to differences that have in the past been the basis for unjust treatment of people and groups. This commitment means that (i) in all the programs, access, and opportunities for participation and leadership it offers, ACR will strive to promote justice and fairness in both process and outcome for all its members, (ii) ACR will strive to recognize and work to eliminate injustices and unfairness arising in its work or existing in the field of conflict resolution, and (iii) ACR will strive never to contribute to the perpetuation of injustice in society. If a commitment described in these terms is more modest than is suggested by the current bylaws language, it is also one that we can—and should—fully live up to. Bill Stempel is a lawyer, mediator, and arbitrator in New Haven, Connecticut. He has been co-chair of the ACR Health Care Section and is co-editor of ACResolution Magazine.

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Mentoring for Diversity:  A First Step by Dana K. Goodson When there is a lack of diversity within a field, recognizing and discussing the problem is necessary but not sufficient. ACR’s Environment and Public Policy (EPP) section took the plunge into action in 2006, devoting the bulk of its program resources for the year to a pilot project that tested a method for increasing the section’s racial and ethnic diversity. Having long observed the need to diversify their ranks, section members theorized that the main entrée into EPP work is through networking. A dedicated Work Group of EPP members1 therefore created the Diversity Mentoring Pilot Project to help practitioners of color gain access to those networks as well as learn skills specific to the field. The Project and the Participants The mentoring project was implemented in 2006 – 2007 and matched senior EPP practitioners in mentoring relationships with practitioners from under-represented racial and ethnic backgrounds (“learning partners”), who were chosen for their dispute resolution experience in other areas. While four participants were originally selected through a competitive application process, one dropped out early in the program, citing lack of time to devote to the project. Three learning partners completed the full year of the program: Tina Patterson, Bruce Coleman, and Robyn Moore-Johnson. They were paired with volunteer mentors Tim Mealey, Maggie Lewis, and the The Work Group was co-chaired by Juliana Birkhoff and Mary Skelton Roberts. Work Group members included Murl Baker, Dan Baldwin, Jeff Blair, Xantha Bruso, Joan Calcagno, Kathleen Conway, Deborah Dalton, Tom Fee, Jan Marie Fritz, Laura Kaplan, Catherine McCracken, Rafael Montalvo, Patricia Moore, Monique Pierel, Gregory Sobel, Tom Taylor, Kimberly Vogel, and Larry Williams. RESOLVE staff provided organizational and administrative support. In addition, a number of EPP members generously made individual donations to the project. One organization donated the plane tickets for the three mentees to attend the July 2006 training.

1

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mentoring team of Lucy Moore and Linda Ximenes, respectively. Over the course of the year, the DMPP anticipated that the learning partners would develop relationships and regularly interact with their mentors; observe or assist with cases; participate in bi-monthly conference calls that featured discussions with other senior EPP practitioners; participate in a training workshop along with their mentors; and, if possible, attend the 2006 EPP section conference. The mentoring pairs carried out these activities to varying degrees, depending on their circumstances and their time investment in the project. Six years after the completion of the mentoring project, where are the participants now? Follow-up interviews with the three learning partners and mentors Maggie Lewis and Lucy Moore reveal that the learning partners’ paths may have taken a different turn than envisioned by the project. After completion of the program, all three learning partners have attempted to enter the mediation/facilitation field as sole practitioners. Their experiences are instructive for the experiment in increasing the EPP section’s diversity. Robyn Moore-Johnson

Before applying to the mentoring project, Robyn Moore-Johnson was an equal employment opportunity counselor and assistant regional counsel at EPA region 6. She left that position in February 2005 to establish her own mediation practice and applied to participate in the mentoring project to help her in that endeavor. “Unfortunately,” she said, “the practice never really flourished.” A few years after completing the pilot project, she gave up the pursuit of her own practice and took a position at the Social Security Administration, where she remains today. While at the Social Security Administration, she began focusing on another professional


interest, counseling, and enrolled in a Master’s program in vocational rehabilitation counseling at Texas Tech University. Tina Patterson

At the time of the mentoring project, Tina Patterson had just moved from Texas to Washington, D.C., and was working fulltime for the American Bar Association’s Dispute Resolution Section while building her own practice in facilitation, mediation, and arbitration. Finding it too difficult to enter the field as a full-time sole practitioner, however, she later returned to the private sector and now works for a company that provides contracting services to the federal government. She takes arbitration and facilitation cases on the side, including the occasional public policy project through America Speaks or contacts from previous projects. “I’m still involved,” she said, “but it’s taken a different turn. I still use the skills and integrate them into my day-to-day work.” In what she termed a highlight of her career, she facilitated a dialogue on race and reconciliation at the Birmingham Civil Rights Institute, exactly 45 years after the March on Washington. “People were very passionate about the discussion,” she recalled. Bruce Coleman

Impact of the Mentoring Project on the Mentors and Learning Partners In the follow-up interviews, learning partners and mentors alike praised the program and its intentions. The learning partners felt they particularly benefitted from building relationships with their mentors and the personalized advice and feedback they received. They also mentioned the continuing value of the skills and tools they learned during the training. “After I facilitated a discussion of a contentious group that I felt was a failure,” Tina recalled, “I went back to a book from the mentoring project and saw where things could be handled differently. In the next session, I met a different group and it went completely differently.” Although one of the expectations of the mentoring project was that the learning partners would have the opportunity to observe or assist with the facilitation of a case, this proved difficult to put into practice due to scheduling challenges. Bruce was the only participant who was able to co-facilitate a couple of meetings with his mentor, Maggie Lewis. “Observing her was quite an experience,” he said, “and I am grateful for that experience... The techniques I learned from her I still use in mediation.” Asked whether the mentoring project had an influence on his career, he replied, “Yes, it made me go in this direction—so I wanted to pursue [mediation and facilitation] further when I retired. A lot of it was from my experience with Maggie.”

In 2006, Bruce Coleman was the regulated community liaison at the Ohio EPA Environmental Education Fund, where he remained until his retirement in 2009. Since then, he has started his own mediation practice, taking cases in child custody, divorce, and labor relations. In addition to building the skills of the learning partners in the He would like to facilitate environmental cases as well, but has not EPP field, the mentoring project aimed to help the mentors expand their skills in coaching and mentoring secured much in the field, observing, “Not having an established reputation, In addition to building the skills of the those new to the field. The training therefore included separate sessions it’s hard. I’ve tried, but people usually learning partners in the EPP field, the tailored to the mentors. Maggie and want someone more seasoned.” Of the mentoring project aimed to help the Lucy felt that participating in the three learning partners, he is the only one who has remained involved with mentors expand their skills in coaching mentoring had benefitted them as well. For Maggie, it offered a more ACR and continues to involved with ACR and continues to participate" and mentoring those new to the field. rigorous, organized approach to her role. For Lucy, the project gave her “a to "involved with ACR. He currently serves as the Diversity and Equity point person for the ACR Court better understanding of how hard it is to break into the field.” As section as well as participating on the diversity committee for the opportunities arise, both of them continue to mentor those who express interest in becoming EPP facilitators. Domestic Court section. Obstacles Encountered

Learning from the Mentoring Project

Both Robyn and Tina pointed to the intense competition in the ADR field, particularly from attorneys and retired judges, as a principal challenge to establishing a viable practice. Tina added that she found it impossible to rely on a single area as a sole practitioner; maintaining a livelihood requires combining arbitration and mediation work with another professional source of income.

Many of the interviewees’ observations about potential improvements to the Diversity Mentoring Pilot Project model echoed comments made in the immediate post-project evaluation conducted in 2007. Participants pointed to the distance between learning partners and mentors as a significant factor in their ability to carry out project activities. Bruce and Maggie, whose offices were located across the street from one another, noted that their proximity made it easier for them to interact regularly and for Bruce to take part in meetings.

With regard to EPP cases, Tina corroborated Bruce’s observation on the importance of having an established name and reputation in the field. Moreover, environmental facilitation projects often call for a Master’s level educational background in environmental studies or related fields. Noting that public policy projects are often more flexible, Tina said, “[clients] are sensitive to making sure facilitators are as diverse as the participants [because] stakeholders say, ‘there’s no one leading the discussion who looks like me—can they understand me?’” For these cases, however, she finds clients are often seeking volunteer facilitators or offer a nominal stipend.

All the interviewees mentioned the difficulty in juggling activities for the volunteer mentoring project with their professional commitments. In particular, learning partners would have liked to participate in more cases, but opportunities to do so typically occur during the workday. In her long experience with mentoring, Lucy has found that the flexibility of the mentee’s job and supervisor is critical to the success of the mentee making the transition to the EPP field. Some suggested that instead of focusing on mid-career professionals, a mentoring project should focus on recruiting Winter 2013

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students or recent graduates who might have more time to devote to the project; others, however, felt that those with prior mediation experience are the appropriate target audience. To alleviate the demands on the mentors, some respondents put forward the idea of mentoring teams whose members could rotate responsibilities and offer a variety of facilitation opportunities to the learning partners. A new lesson emerging clearly from the interviews was that the effort to assist learning partners in making the transition to the EPP field requires a sustained commitment. Both the learning partners and mentors interviewed thought the program should have continued in some way after the initial year of the project—through regular check-ins, refresher classes, connecting participants with facilitation opportunities, or by extending the project over a twoyear period. “What they taught us, the information they gave us, was very valuable,” Bruce attested. Without continuing engagement, however, “It’s like I gave you a corvette but didn’t give you the keys.” Participants also pointed out that a longer-term program would require a correspondingly larger commitment of resources. The Next Step Robyn and Tina both observed that there is still a need to assist interested practitioners of color in becoming involved in the field. Indeed, recent research shows a continuing racial bias in hiring practices in the United States, as evidenced by a persistent disparity in unemployment, with the rate for blacks twice that for whites. Kevin Bryan, chair of EPP’s Diversity and Equity Committee, commented on why this continues to be the case, “We get jobs because of relationships. Let’s be honest—we’ve come a long way as a society, but we have our connections and our circles, and we tend to be with people like us. I’m a firm believer that I will have a more difficult time forming relationships in this relationship business when I’m sitting across the table from someone who went to Harvard.”

the diversity of the EPP field can be viewed as an essential first step in breaking down barriers to entering the field. Asked whether the EPP section has any plans to continue its efforts at increasing diversity, Kevin replied that while no projects are currently envisioned, it is an important issue to address at the May 2013 EPP section conference. Adding another dimension to the issue, he said, “We need to ask ourselves two things—not only how to address the diversity of practitioners in the field, but also of those around the table who are using our services. When I walk into the room, I’m often the only African American there.” He believes the section should work on identifying the issues that are not being raised or viewed from an angle relevant to people of color. Although the pilot project might not have provided sufficient assistance for participants to successfully make the transition to the EPP field, all the interviewees found the effort laudable and expressed enthusiasm for seeing it continued. According to Maggie, “My observation is that it’s still about pathways and matching [participants] up with the right pathways.” She and other participants said they hope to see the project continued, and they would like to take part again if the effort is revived. The mentoring experiment raises the questions of what more can be done to facilitate access for practitioners of color and where resources can be found to support ongoing efforts. It remains to be seen whether the EPP community will rally with a response. Dana Goodson is a senior facilitator at RESOLVE. She was the coordinator of the Diversity Mentoring Pilot Project, sponsored by the Association for Conflict Resolution’s Environment and Public Policy section, and a former section member.

In this context, the mentoring project’s initial foray into increasing

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University & Community Action for Racial Diversity (UCARE): Confronting the Legacy of Slavery, Segregation, and Discrimination at the University of Virginia By E. Franklin Dukes, Ph.D.

I

ndividual acts of discrimination are often easy to identify, albeit sometimes hard to challenge. The sources of institutional and structural racism—harm resulting from systemic or historical circumstances and not due to individual prejudice—are often more difficult to ascertain, and are certainly are much harder to confront. Why is this the case? We Americans view ourselves as, and want to be, fair and generous people. It is an important part of our national identity. We give— a lot. When confronted with visual evidence of real need, such as after natural disasters, we respond generously. For example, when Hurricane Katrina landed and images of displaced residents flooded the airwaves, a large portion of our population donated an enormous amount of money and goods. Many people took vacation time to work rebuilding homes, and elected officials raced to provide public resources for immediate care and reconstruction. Paradoxically, that same impulse to view ourselves as people who care deeply for one another also leads many of us to place a “veil of ignorance” over our eyes. When we see homes damaged by storm we don’t see race or class; we see helpless victims, and our impulse

is to give. But when we have pernicious and enduring disparities in education, the criminal justice system, health care, employment, housing, and more, as is the case in my home community of Charlottesville and throughout the United States, many of us respond differently. We tend either not to see these issues at all, or worse, to blame those who suffer from these inequities for their own plight. Many people find it easy to pretend that structural racial injustice does not exist anymore, that the consequences of hundreds of years of slavery and a century of de jure and de facto segregation and white supremacy were wiped out virtually overnight in the glory of the civil rights revolution. Many of us believe—or at least act as though we believe, despite overwhelming evidence that is readily available that everyone starts life with a blank slate and an equal opportunity. In part, this self-deception occurs because much of the history of slavery, segregation and white supremacy has been forgotten, covered up, or ignored. And in part, this occurs because if we were to acknowledge that economic and social disparities are not the fault of those who are less well-off but result from disparities in how people of different races were and are treated, we could not tolerate them Winter 2013

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and still claim to be fair and generous people. That acknowledgment would be a threat to our very identity. What responsibility does the persistent existence of widespread racial disparities bring to those of us in the conflict resolution field? I hesitate to answer that question for anyone but myself. I don’t think that there is a single answer; our work is too varied. We all have different responsibilities and priorities; many people have other challenges that may seem overwhelming. And some of us have more opportunities to act than others. I do know that as a faculty member at the University of Virginia who works as a mediator and consensus builder, I have both an obligation to ask that question and a unique opportunity to contribute to its answer. Addressing the Racial History of the University of Virginia

see the memorial to Dr. Harvey Jordan, long-time Dean of that School. Dr. Jordan also was a leader in the field of eugenics and an advocate for race purification. Three graduates taught by Dr. Jordan led the infamous Public Health Service (PHS) Study of Untreated Syphilis in the Male Negro (1932–72), in which African-American men with syphilis were left untreated and uninformed of their condition. Just as the University’s segregationist past exists today in the celebration of people like Dr. Jordan, the racial disparities of the past continue to affect the present. As an example, the rate of infant mortality among African Americans in the city of Charlottesville, beginning just outside the doors of the University hospital, is an appalling three times that of white infants. This is among the highest rates in the entire state of Virginia. The history I described doesn’t itself explain the racial disparity in infant mortality. But it helps to explain why there remains considerable distrust in the community among African Americans about how they will be treated when they do seek care.

I have been working at the University since 1990 and have directed In recent years I have heard about the family member of a white the Institute for Environmental Negotiation since 2000. During patient seeking to have a white resident fired for allowing an African that time I have often been afforded the occasion to teach on the American resident to visit her relative; about African American central grounds, called the Lawn, designed by Thomas Jefferson. workers hired for hourly work without benefits to do the same job The room I am assigned is in one of for which white workers enjoyed full the original Pavilions built to house If we were to acknowledge that benefits; about African American faculty and classes. economic and social disparities are not medical school graduates warned by peers against serving their residency On the first day of class, I always ask my the fault of those who are less well-off at the University hospital; about students, “Who built this place?” recruited students and faculty Every student already has been taught but result from disparities in how people warned by their families and peers that Jefferson built the University, so of different races were and are treated, about an atmosphere of racial they know that I am probably looking we could not tolerate them and still claim indifference and even hostility at for a different answer. Eventually, the University; about both black someone figures it out: This to be fair and generous people. and white faculty who come to building—this very place where we sit the university but do not stay, and talk in comfort - was built using the labor of people who were and describe their frustration that race and equity issues are too enslaved. Not only that, but although students are taught that the frequently set aside. University would not allow students to bring slaves on the grounds, thanks to Jefferson’s enlightened ways, in fact there were well over 100 Two narratives slaves actively supporting the work of faculty and staff. Students, faculty, alumni, and visitors to the University are likely to That may be the first surprise, but it is not the last. This very same hear an inspiring narrative about the university and its proud history. place that so many students and alumni love deeply supported or led • The University is a world-class institution supporting innovative some of the most hateful and destructive practices of segregation and research and inspired teaching that improves the lives of Jim Crow: eugenics, forced sterilization, racial purity laws, medical countless individuals and families and spreads knowledge experimentation, as well as active discrimination and resistance to throughout the globe. integration long past the time when leaders knew that segregation should and would end. • It employs thousands of people and generates millions of dollars These practices were not incidental, they were part of the structure of the place. As one of many examples, the University hospital, like others in Virginia, was fully segregated until the 1960s. The black wards were located in the basement, where at times there were too few rooms to accommodate all the patients. The hallways of the black wards would sometimes be filled with patients while rooms in white wards sat empty. Local residents recall with bitterness that relatives in the basement ward had to share space with a dog, the mascot of students. Black and white staff worked in unjustly different conditions, white staff refused to address black patients as “Mr.” or “Mrs.”, and African Americans were sometimes refused care altogether. Today, one may visit Jordan Hall, the site of the Medical School, and 28

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of economic activity within the community.

• Students, staff and faculty volunteer thousands of hours within the community each year and fulfill other leadership roles as well. • The University also exerts a more profound influence. Beginning with Jefferson, the University has always aspired to be a beacon of public good, where honor and a community of trust, service and public responsibility are considered keystone functions embedded within all University institutions. But there is another narrative that until the last few years has been virtually unknown. • The founding of the University of Virginia served the needs of a ruling class of white landowners fiercely opposed to extending freedom and emancipation for African Americans.


• Slaves and slavery played a major role in early University life. • University leaders were actively complicit in both the intellectual underpinnings and the practical application of white supremacy, racial purity, eugenics, de jure and de facto segregation, and discrimination. • The end of formal segregation at the University occurred despite tremendous resistance and largely because of the hard work of African-American students and community leaders. • In the surrounding community racial disparities, the sources of which originate from the time of segregation, continue to permeate virtually every area of community life, including housing, education, public safety, health and employment. • Much of that community, including both its grass-roots and leadership elements, blame the University for ignoring these problems, for contributing directly to these problems, and, perhaps most painfully, for seeing the University as being above these problems. Everything in the first narrative is accurate. Yet it is deeply flawed, because it ignores the truths contained in the second narrative. That makes it both woefully incomplete and painfully misleading, for it is incomplete in such a way that defies and defiles the principles and aspirations it declares with pride. The Costs of Living in Ignorance and Dishonesty The continued pretenses about the University’s past and its place in the community perpetuate an enduring cycle of harm. There is the ordinary harm that is done when a community declines to recall its less-honorable past, a habit of forgetting and pretense that, once permitted, more readily permeates other public discourse. But there are more direct harms that occur every day. Many in the larger community scorn relationships with students and faculty and avoid potentially promising and mutually beneficial partnerships. Many within and outside the University who recognize the enduring confluence of slavery, segregation, discrimination and white supremacy, and its ongoing legacy in the racial disparities within and outside the University, have little or no trust in the University’s institutions. For these individuals, the University remains a place where privilege remains in the hands of a few. They have little faith that University leadership cares about anything but its self-preservation, an interest that demands maintenance of an idealized image that bears little resemblance to the experience that they know. In the encounters the University’s students and graduates have with the larger community, they may find mistrust and an assumption that they wear a mantle of unearned privilege. The members of that larger community often believe that they are either invisible or that their presence at the University of Virginia is not welcomed except as its lowest-paid workers. For these individuals, most of the University of Virginia appear off-limits to them, their children and their community. That portion of the surrounding community that knows the University as “The Plantation” may not know its entire history, but it knows enough to comprehend and resent the deceptions I have described.

The University & Community Action for Racial Equity (UCARE) The challenge for me as a conflict resolution practitioner has been to reconcile these two narratives in ways that bring people together rather than drive them further apart, that heals more than it wounds. Since 2007, with the generous support of the Andrus Family Fund, I and a growing number of my colleagues at the University and members of the community have been bringing people together in groups small and large to learn from this history and to take actions that address ongoing racial disparities. In September 2012, the Steering Committee of what has become the University & Community Action for Racial Equity (UCARE) took a major step by issuing the results of our first years of work, A Call to Reflection, Deliberation and Action: What Should We Do? What Can We Do? What Will We Do? With the publication of that report, we have invited all members of the University and neighboring communities to join in the following purposes: • To commit to learning about our shared history, and particularly those elements tied to slavery, segregation, discrimination, and efforts to confront those wrongs—to seek the truth. • To reflect on the meaning of that history as it continues to impact our lives and community today, in particular in the legacy of racial disparities that permeate our shared community—to seek understanding. • In the face of that history and those disparities, to consider our responsibilities and opportunities to address the legacy of harm within the University and neighboring community—to seek repair. • To hold ourselves accountable to honor, scholarship and service as they apply to relationships between the University and the community—to seek authentic relationship. This has been a persistently challenging, intensely rewarding, often painful, and as-yet incomplete journey. I do not always meet my goals of bridging divides and providing healing. But I take solace in the words of Archbishop Desmond Tutu: “Forgiving and being reconciled to our enemies or our loved ones are not about pretending that things are other than they are. It is not about patting one another on the back and turning a blind eye to the wrong. True reconciliation exposes the awfulness, the abuse, the hurt, the truth. It could even sometimes make things worse. It is a risky undertaking but in the end it is worthwhile, because in the end only an honest confrontation with reality can bring real healing. Superficial reconciliation can bring only superficial healing.” For more information about UCARE’s work, see www.ucareva.org. Frank Dukes, Ph.D. directs the Institute for Environmental Negotiation, University of Virginia, building consensus from the Appalachian Coalfields to the Chesapeake Bay watershed and beyond. He is a regular contributor to ACR publications and conferences and was the recipient of the 2012 Sharon M. Pickett Award.

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Diversity of Practice

and the Assumptions We Make About Each Other By Lou Gieszl

A

t the start of the 2003 film The Secret Lives of Dentists, a wry character played by Dennis Leary squirms in the chair while his decaying teeth are being poked and prodded by a careful but judgmental dentist. Looking dismayed, the dentist explains that “besides your present cavities, you have some poorly filled teeth here that really need to be redone.” Leary’s character sits up in the chair, and cries, “you know, no dentist I have ever known has ever had anything good to say about another’s work. You notice that?” The Problem With apologies to dentists, I’ve often thought of that scene and wondered if dispute resolution practitioners project a similar air of self-righteousness. When we hear people’s horror stories about a mediation gone wrong, for example, do we assume the problem was the mediator’s skills, style of practice, venue, or professional affiliation, or other potential limitation? “Were you working with a retired judge, or a court-appointed mediator, or a therapist-mediator, or a community volunteer, etc.?” we might ask defensively, trying our best to separate ourselves from the so-called bad mediator. The vastness and vagueness of the entire alternative dispute resolution (ADR) field complicates matters even further. The general public knows very little about the nuances of arbitration, mediation, conciliation, settlement conferences, mini-trials, peace-making circles, ombuds services, or community conferences, just to name a few. Those who are somewhat familiar with our field typically learned about it first-hand, sometimes during highly contentious or even traumatic life circumstances.

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ACR’s Role As this edition of ACResolution illustrates, one of ACR’s greatest strengths is its unwavering commitment to diversity and equity. Part of this commitment involves an appreciation for diversity of practice. ACR is the premier organization for all types of dispute resolution practitioners. ACR partners with many wonderful organizations, each of which tends to appeal to one or more subsets of our field. ACR is unique, however, in that its members and leaders cut across all areas of practice, and as such, ACR must always embrace and celebrate the breadth and depth of the entire dispute resolution field. As our field grows and evolves, ACR must continuously seek out opportunities to highlight excellence in every area. By promoting established and emerging leaders with different areas of practice expertise, ACR can be of service to members at every level, while helping people new to the field to find the path that is right for them. Anyone who has ever attended an ACR conference knows that it is a welcoming organization. Practitioners from all over the world have established lifelong friendships and enduring professional relationships because of ACR. Still, there are discernable “camps” within the organization that mirror the field overall. To some degree, almost every practitioner’s style or venue of practice becomes part of his or her identity, and we are naturally drawn to those who seem like us. As our camps develop, we may find ourselves fortifying our own camp and attacking those who are not like us. Unlike some other organizations, ACR is intentionally structured to create opportunities for communication and learning across


the encampments. ACR recently adopted a tagline—“voices, choices, solutions.”—which calls for giving voice to every area of practice, offering practitioners choices for improving their skills and advancing the field in its broadest sense, and creating opportunities for members to collaborate on solutions, within their chosen paths and practices. Diversity of Practice In 2011, ACR released a report on diversity of practice titled “A Small Step Toward a Difficult Conversation.” Co-chaired by Howard Gadlin and Marvin Johnson, ACR’s Diversity of Practice Initiative prepared its report based on perspectives from numerous national leaders representing every aspect of the ADR field. Their inquiry touched on some often hotly debated issues including (1) the connection between diversity of practice and diversity of practitioners; (2) setting baseline ethical guidelines and universal standards of quality across practice areas; (3) empirical research supporting different ADR approaches; (4) the possible benefits of “open critical discourse” about the various dispute resolution practices; and (5) the impact certification and other standard-setting efforts have had on diversity of practice and practitioners.

what does not. A practitioner who has found the “best” framework or process for herself, however, needs to resist the temptation to claim that she knows what is best for other practitioners. Once we begin to say “my way is right and your way is wrong,” we find ourselves in endless and unproductive argument about process and technique. Just in the mediation field alone, think about what questions divide practitioners of different frameworks, venues and professional backgrounds. Should we caucus every time, sometimes, or not at all? How important are pre-mediation conversations and how should they be conducted? Can we ever give advice? Should we reframe negative statements always, sometimes, or never? Is it more important to highlight areas of common ground or areas of strong disagreement? What are the best ways of arranging the chairs in a large group session, or is that even important? To what extent should a mediator reality-test an initial agreement? What are the best ways to terminate a mediation session if you suspect violence or abuse? How should we handle explosive outbursts, profanity, or ad hominem attacks? Should we intervene if someone starts to walk out on our process? Should we have a no-texting ground rule? What are the best ways to use a flipchart? The list goes on and on.

The above are all meaningful questions about process and technique. As the report noted, there is a strong connection between diversity Most if not all also reflect various philosophies or attitudes about conflict dynamics. We can learn of practice and diversity of from one another through practitioners. Overall, there is As dispute resolvers we offer many different respectful dialogue about these a great lack of diversity with processes, use widely varying techniques, and and other questions. Too often, regard to age, race, ethnicity, and though, our natural tendency gender in many areas of the field, even have tricks of the trade which are all to evaluate what we hear and to especially in so-called high-end our own... Too often we get stuck and cannot make assumptions about others practice areas. There may also interferes with our learning be less diversity of practice in see past these differences, not unlike the way process, just as it often does with those areas, as it may be more that prejudice and stereotyping traditionally our clients. Instead of listening difficult for mediators practicing with an open mind, mediators within certain frameworks to get interfere with our ability to celebrate other may talk assertively about the on rosters or attract corporate elements of diversity. dictates of their particular clients, for example. Whether mediation framework and may competing for business or just for recognition in the field, ACR’s various camps find it necessary quickly fall into “I’m right, you’re wrong” win-lose patterns. We to defend their positions, and with empirical research still limited, say “that doesn’t get the case settled” or “that’s not mediation." We many camps have little ammunition. The battles actually rage on at should know better, but we don’t. two very different levels: the first is about the nature of conflict, what people need from practitioners, and how we as a field can best help Skills and Abilities create a more positive conflict culture; the second is about market Despite our arguments about process and technique, effective share and how well practitioners of various approaches and venues practitioners across all the ADR models and mediation frameworks are able to have successful careers. share many critically important skills and abilities. These include Peace-loving readers who are surely tired of my battle analogy at this point would likely agree with the Diversity of Practice Initiative’s conclusions, specifically, that that there are “underlying value differences within our field that are not being addressed.” ACR, in my view, is well positioned to help encourage reasonable, respectful, discourse as a way to address those differences. A first step toward this is to help practitioners to understand what people in different practice areas do and why. We need to look beyond the labels -- such as transformative, facilitative, evaluative, etc.—in order to appreciate fully the many areas of practice that we call conflict resolution. Process and Technique ADR practitioners of all types take pride in their work. With experience, most practitioners figure out what works for them and

being comfortable with intense conflict, bringing peace into a room, supporting people through emotional turbulence, listening with focus and empathy, keeping an open mind, suspending judgment, exercising mindfulness, and focusing on the future. These skills and abilities are more subtle than are issues of process and technique. We don’t always realize how much we share, especially when we are arguing about everything we do differently. Consider the two Venn diagrams below. For illustrative purposes, I have added labels that are commonly used for different mediation frameworks. These labels, however, can be used interchangeably with other mediation approaches or other ADR processes besides mediation. As we examine different ADR processes and mediation frameworks, we would be well served by discussing practitioner skills and abilities, along with differences with respect to process and technique. Winter 2013

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Process and Technique

ACR is well positioned to be a model for the rest of the field with respect to diversity of practice. Although some aspects of the field are better represented than others, ACR’s membership includes a diverse cross section of practitioners with expertise in a wide variety of approaches and venues. ACR’s system of sections, chapters and advanced practitioner designations helps people excel in their specialty areas and their local communities. So, although the encampments are discernible, encouraged and supported, ACR provides a sense of camaraderie through which practitioners can come to recognize their shared skills and abilities. Are you up for the challenge?

Skills and Abilities

Transformative Mediation Facilitative Mediation

Evaluative Mediation

Quite simply, as dispute resolvers we offer many different processes, use widely varying techniques, and even have tricks of the trade which are all our own. Honoring diversity of practice requires accepting, appreciating, and clearly articulating such differences. Too often we get stuck and cannot see past these differences, not unlike the way that prejudice and stereotyping traditionally interfere with our ability to celebrate other elements of diversity. A first step, I think, is deliberatively focusing on the many skills and abilities that we all have in common. The decisions we make about how to conduct a mediation, along with which approach or approaches we use in mediation or other ADR processes, can become part of our personal identity and may reflect a myriad of considerations. The individual practitioner may wrestle with any number of questions. What “feels right” to him? What seems to have the strongest theoretical or empirical support, in her opinion? What best correlates with his formal training or academic study? What in her opinion do people in conflict need? What does he think will best improve the community and promote peace? What does she think will lead to sustainable outcomes for participants and a sustainable income for her? Creating opportunities to discuss these and other considerations, without judgment and with an acknowledgement of the skills we share, will strengthen our field while creating a real sense of community. Conclusion Advancing diversity of practice in the dispute resolution field will require creating a general sense of curiosity amongst practitioners who want to learn what everyone does and why. Taking such an expansive view, may seem irrelevant to some, given the great 32

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variations of process and technique. However, focusing on skills and abilities provides a relevant context, a sense of common ground, and a lens through which we can see each other with renewed interest and appreciation.

Lou Gieszl is the Deputy Executive Director of the Maryland Judiciary’s Mediation and Conflict Resolution Office and is an adjunct professor at the University of Baltimore’s Master’s Program on Negotiation and Conflict Management. He’s a pastpresident of ACR and served as a member of ACR’s board of directors from 2006 through 2012.


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CONFLICT RESOLUTION DAY

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EVERY THIRD THURSDAY IN OCTOBER • Sponsored by the Association for Conflict Resolution

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