Project Article Reprinted in GPSolo Magazine

Columbus, Ohio –  The November / December 2016 edition of the American Bar Association’s GPSolo Magazine features “Mediation and Planning in Advance of Civil Unrest” in its “Best of ABA Sections” segment.  This GPSolo article is an abridged reprint of “Planning in Advance of Civil Unrest, A Role for Mediation-Wise Attorneys” co-authored by Divided Community Project leaders Nancy Rogers, Grande Lum and William Froehlich.

The original article is available on the ABA’s website (membership required) and in the Summer 2016 edition of Dispute Resolution Magazine.  The original article is reprinted below with permission of the ABA, which holds the copyright.

Planning in Advance of Civil Unrest A Role for Mediation-Wise Attorneys

By Nancy Rogers, Grande Lum, and William Froehlich

For a reminder that volatile civil unrest captures public attention, look no further than Twitter, where according to one recent news report, #Ferguson is the most influential social-cause hashtag of all time.  The possibility of further turmoil has not faded as tragedies in Dallas, Saint Paul and Baton Rouge hit one after the other in one July week this year. All too many similar scenes have unfolded in Baltimore, Maryland and Ferguson, Missouri and other cities in recent years.

As Internet and television reports of these events captivated the public, attorneys steeped in mediation expressed their desire – in blogs and public and private conversations – to use their expertise to help their communities avoid similar fates, and in doing so, build trust and improve outcomes. We think that attorneys who are mediators or have represented clients often in mediation (we are calling them mediation-wise in this article) have a meaningful role to play and that the nationwide urgency about unrest will increase community members’ willingness to respond to these attorneys’ leadership. In this article we offer practical suggestions for how mediation-wise attorneys can play an effective role in preparing for – and perhaps forestalling violence connected with– community unrest, as well as strengthening their public leaders’ abilities to deal with people’s concerns and building trust among communities within the community.

Two examples of how experienced mediators have helped in the midst of civil unrest

After Trayvon Martin’s death

Sanford, Florida, is just one place where conciliators from the US Department of Justice’s Community Relations Service (CRS) and others have worked on a local level during tumultuous times. In the aftermath of the February 2012 shooting of Trayvon Martin, an unarmed African American teenager, by a neighborhood watch coordinator George Zimmerman, CRS conciliators teamed up with local and national civil- rights leaders, the local US Attorney, FBI, clergy, and law enforcement officials to reduce tension and prevent violence. Their efforts were not limited to just the days that followed the decisions regarding prosecution of George Zimmerman: CRS conciliators also worked with many of the same stakeholders to ensure a coordinated response to three large marches and demonstrations and negotiated a peaceful resolution to a student-led sit-in at the entrance to Sanford Police Headquarters. Assistance included providing expertise in police practices as well as mediation when the conciliators facilitated discussions between city officials and protesters and suggested best practices for handling confrontations.[1]

By happenstance, some months before the shooting the city of Sanford had employed — for duties independent of potential unrest – Andrew Thomas, a mediator with decades of experience dealing with community conflict in New York.  When the shooting occurred, Thomas coordinated with CRS and helped local officials arrange police protocols, develop communications strategies, create stakeholder groups that spanned community divisions, and convene long-term discussions that resulted in changes in law enforcement practices. Though demonstrations sometimes swelled to a size that represented more than 60 percent of Sanford’s population, the protests were peaceful, and police did not arrest any demonstrators.[2] Perhaps most important, Thomas continues to facilitate talks that have already led to broadly embraced changes.

After Michael Brown’s death

Ferguson, Missouri, presented a contrast with Sanford as violence and property damage erupted almost immediately after the August 2014 fatal shooting of Michael Brown, an African American youth, by a white police officer. A team of CRS conciliators quickly converged in Ferguson, where they held dozens of meetings with police, community leaders, and Michael Brown’s family to persuade “apprehensive residents, overwhelmed city officials, angry protestors and frustrated police” to sit down and talk.[3] CRS staff also convened a coalition of elected officials, law enforcement executives, school administrators, and faith leaders from the St. Louis area to discuss the underlying issues of race and law enforcement and initiate development of long-term solutions.  CRS staff members were able to provide a safe space for residents to voice their concerns and develop local community solutions in town meetings and community dialogues, away from the media frenzy. CRS staff also organized meetings between US Attorney General Eric Holder and local community leaders that were widely praised for reducing tensions.[4]

Lessons from Sanford and Ferguson

These examples suggest why mediation-wise attorneys might help by contacting CRS or persuading local officials to seek CRS assistance – and also illustrate why attorneys without close connections to public officials might not be able to mediate in the midst of civil unrest as effectively as practitioners who are experienced in this demanding, tense kind of work and have (or can quickly develop) ties to federal, state, and local leaders. These are not your garden-variety legal mediations. Intervention in community unrest requires a unique dispute resolution skillset: the knowledge and ability necessary to facilitate rules of engagement between law enforcement and public officials at protests and in meetings; ability to initiate negotiations in the midst of violence; and expertise in communication that works in times of distrust. Entering situations in which every hour counts, an intervenor’s success also often depends on experience – especially experience dealing with civil rights advocates and the public values at stake in community unrest that should inform decisions about when to negotiate (should talks be delayed to give demonstrators more time to gain community attention, for example?) and what to negotiate (the safety of the demonstrators and others only? safety and also the demonstrators’ demands? the demands only or also the underlying problems?) and in working with national advocacy group leaders and local officials, such that the intervenor has already forged relationships with them. Traditional attorney-mediators who try to intervene may not only lack the needed skills and background but also risk complicating the tasks of the experienced public mediators who are already at work.

As Sanford’s story also illustrates, preparation and continued involvement make a huge difference. The city of Sanford’s mediator, who was in place as a city employee before the unrest, was able to help CRS conciliators gain acceptance by community members, guide the conciliators to stakeholders, and continue the work after CRS conciliators moved on to other cities.

Preparing During Tranquil Times

Tranquil times, however, provide fertile ground for those with mediation expertise to help communities plan in advance. Take, for example, the Divided Community Project at the Ohio State University Moritz College of Law, which by its own description “strengthens community efforts to transform division into action.” The project, whose leaders include the authors of this article, recently received a two-year grant from the JAMS Foundation to establish pilot programs that test models for communities to develop plans for identifying and addressing practices that trigger civil unrest; design and implement dispute resolution processes that can bring about meaningful, systemic change; and develop conflict assessment tools and protocols that can convert community division into positive action. The project website, go.osu.edu/dividedcommunityproject, provides step-by-step guidance that attorneys can use to help their communities plan.

Although at the time of this writing its efforts were still in the development stage, the Divided Community Project currently works hands-on with groups of attorneys who are quietly convening broad stakeholder committees to plan in advance of civil unrest and preparing background materials for them. Once formed, these stakeholder committees will assess community concerns, assure that the community is addressing these concerns in meaningful ways, work to build community trust, and make plans for the community’s response (not just the police response) should civil unrest occur – in short, to make the communities more resilient. The project’s convening groups, some of which are organized jointly by the local bar, the minority bar, and the US Attorney’s Office, will utilize mediation and leadership skills to build consensus and momentum.

Tranquil times also offer opportunity for mediation-wise attorneys to conduct the research that will help communities deal with division.  For example, the work of Jacqueline Nolan-Haley, a Fordham Law professor, provides an outsider’s assessment of processes developed in Northern Ireland after decades of violence ended with the 1998 Good Friday Agreement. Having visited Northern Ireland over the years since the agreement and followed media reports and commentary, Professor Nolan-Haley examined, in an article to be published soon by the University of St. Thomas Law Journal,[5] processes to deal with community division that were set up by past planning efforts and suggested ways to make them more effective. She questioned, in particular, whether these processes built sufficient trust among neighbors divided by an often-violent conflict that these residents could agree on constructive political action aimed at preserving long-term peace.

As these examples illustrate, attorneys can contribute during tranquil times as the incipient Divided Community Project is doing to help convene stakeholder committees that will make their own communities more responsive and resilient or they can provide analysis, as Nolan-Haley did, that will guide planning by others and emphasize how much more difficult their work will be if they wait to plan until violence occurs.

How to Plan

At the Ohio State University Moritz College of Law, we worked with colleagues at the Divided Community Project to compile a list of important questions to consider when planning in advance of civil unrest.[6] Mediators, public officials, civil-rights advocates, and community leaders have all contributed to the inquiries that follow, which we believe attorneys with mediation expertise can apply to their own communities.

  1. Who should take the initiative to promote a process for planning during tranquil times?

Mediators appreciate that “getting parties to the table” represents one of mediation’s toughest challenges as key stakeholders are often unwilling to engage in a process that requires credibility, trust and putting aside differences.  Bar associations might be a useful forum for creating a small convening group as bar associations tend to have a wide network of key relationships as well as a reputation for fairness. This is not the group that should actually create plans in advance of civil unrest, but one organized for the purpose of selecting – and then persuading – other individuals in a community to join a more broadly inclusive planning committee. That planning committee, in turn, can provide the knowledge and experience to plan effectively, credibility within the broader community, and connections to work with civic leaders to implement whatever plan is eventually designed. Nolan-Haley’s reflections suggest that processes resulting from the actual planning process are more likely to fail when public officials do not include key stakeholders in the early stages, so thoughtful recruitment of planning committee members will be worth the extra few months that the convening group is likely to require.

  1. How can the convening group persuade the key officials and other leaders to participate?

Like parties in any effective mediation, many public officials and other local leaders need to have a sense of urgency and a clear goal before they will agree to participate in such a project. To secure information that would help identify stakeholders, persuade people to participate, and guide the planning agenda, one convening group used law students from the Divided Community Project to interview scores of advocacy, religious, and other leaders throughout the community. “What are the people you know best upset about?”  “What do they do with their concerns?”  “Are they satisfied with the responses to their protests?” They asked interviewees whether the broader community, including suburbs, had solid plans for constructively handling unrest. The students also researched, mostly through online sources, past and current sources of conflict, locally and nationally, and discussions in the media of recent changes that might produce additional conflict. Based on interviews and online research, they listed festering conflicts and provided information on the community’s ability to deal with division. They also asked what residents from all parts of the community valued about the community – the joint interests residents sought to preserve despite their vehement differences. Their report on this research helped the convening group determine who needed to be part of the planning group and provided helpful information about how to persuade the planning committee invitees that their participation would matter.

  1. How can a planning group develop an early-warning system and other public processes through which emerging problems can be identified and addressed?

As anyone with mediation experience knows, listening and reflecting back concerns helps people recognize and then resolve underlying interests. The same is true of the community context, where by listening to a broad set of voices and seeking data points, a planning group can gauge sources of tension and turmoil. A planning group can also develop ways for public officials to hear and understand broad community concerns by organizing broadly inclusive advisory groups that meet regularly with public officials, having regular opportunities for residents to alert leaders to their concerns, and devising instruments to help identify potential community hot spots.

In addition to identifying concerns, planners can assess whether residents think that already existing processes are effective ways to address their concerns or that something more is needed. As Nolan-Haley points out, taking inventory of existing processes is essential, but so is determining whether those processes really can meet and respond to residents’ needs. Such assessments might need to be repeated for communities in flux. Filling gaps keeps the community responsive and decreases the need for citizens to take to the streets as a way to get their voices heard.

  1. How can a planning group improve patterns of constructive practices, including enhanced relationships among diverse parties and with public officials?

Successful mediators understand the importance of building trust in their own mediations and will appreciate the need to build trust within a community. Those who intervene in community conflicts say that concerns are less likely to escalate to violence if public officials, advocacy groups, and community leaders have already developed patterns of constructive engagement, which might call to mind the old saying that the best time to make a friend is when you don’t need one. Planning activities that regularly connect groups within a community for constructive interactions enhances community resiliency, as do frequent positive meetings between public officials and community representatives.

Moreover, as with shared interests in a mediation, a community that has developed a shared identity, one that spans interest groups, has extra motivation to preserve peace as it works through differences. Planners who listen carefully for these broadly shared interests can help communities recognize, name, and remember them.

Nolan-Haley’s research in Northern Ireland underscores the clear advantages of doing this relationship-building/shared identity work before conflicts become violent. The immediacy of past violence increased the difficulty of gaining engagement by all key Northern Ireland stakeholders. Nolan-Haley suggests that a barrier to engaging may be the perceived failure by some groups to “deal with the legacy of the past.” If prospective participants believe that an effective means to address the past will be part of the strategic planning, they may well engage in the process. Her work suggests that planners in US cities, particularly those planning after violence, may need to do more than enhance relationships – they may need to deal with past injustices before some stakeholders will engage in planning for future concerns.

  1. How can a planning group help civic leaders develop and implement concrete plans for the first hours and weeks of civil unrest, should it occur?

Experienced mediators know that having seen a wide variety of parties, interests, and challenges makes them much more effective than mediators who are working on their first case. Local officials, especially those in small communities that have never experienced unrest before, are like first-time mediators. During the first few hours of a crisis, they must make crucial decisions, ones that often quickly become public, many times with no knowledge of what has or has not worked in similar situations elsewhere. They may not even know about CRS and other resources offered by the US Department of Justice. They may have no idea how quickly and dramatically conflict can escalate.

The Divided Community Project has published a list of considerations for those leaders already facing civil unrest to help with the most common early decisions.[7]  A planning committee can help leaders create protocols in advance during tranquil times.  The protocols might include how the leaders will:  establish a process for dealing with underlying concerns, including past grievances; engage the right people in responding to the issues raised by these concerns; establish consistent approaches between law enforcement and city officials; and communicate accurately, clearly, and accessibly in ways that each part of the community trusts.

Attorneys’ Roles as Community Leaders

Attorneys in volunteer capacities have played informal leadership roles in their communities for some time, acting as what legal scholars have called the “lawyer-statesman”[8] or the “pillar of the community.”[9] In the 1970’s, attorneys fulfilled this role to plan in advance of potential civil unrest as judges directed school districts across the country to desegregate – especially after witnessing the violence that followed court-ordered busing in Boston. In Detroit, attorney and nonprofit leader William H. O’Brien served as co-chairperson for PRO-Detroit, an ad hoc organization designed to “seek the broadest city-wide coalition to endorse the effort for peaceful compliance” with the anticipated court ruling[10]; in Columbus, Ohio, attorney and business executive Rowland C.W. Brown convened civic leaders to serve on the Metropolitan Columbus School Committee to educate and prepare the community for the forthcoming desegregation decision.[11]

The experience many attorneys now have with mediation equips them to play even more specific and pivotal roles in connection with unresolved divisions within communities. Thanks to the development of robust alternative dispute resolution programs across the country, many young attorneys are trained mediators or have some experience with mediation.[12] Even untrained lawyers who have watched multiple well conducted mediations can understand the power that comes from shifting out of the traditional advocate role, recognizing people’s interests, and helping clients develop options that meet those interests..[13]

The time is right for attorneys to contribute this expertise. As in the era of school desegregation, today’s national narrative about unrest makes most community leaders receptive to suggestions about planning initiatives. Concerned civic leaders are hungry for ideas and conversations to build trust. Following the President’s Task Force on 21st Century Policing 2015 recommendations to advance policing practices “while building public trust,”[14] organizations such as the Major Cities [Police] Chiefs Association and the International City/County Management Association are actively discussing and implementing best practices that specifically address this goal.[15]

We have seen how trained and experienced conciliators from the Community Relations Service and other agencies can help after a crisis has erupted. But as all mediators know, conflict can be addressed at its roots, and this is where we think mediation-wise attorneys can work in a time-honored role, as modern lawyer-statesmen, by working to help communities recognize and address the divisions that could tear them apart — and plan ahead to collaborate during difficult days.

Nancy H. Rogers is an emeritus professor at the Ohio State University Moritz College of Law, former Ohio Attorney General, and a steering committee member of the Divided Community Project at the Ohio State University Moritz College of Law. She may be reached at Rogers.23@osu.edu. Grande Lum is the Director of the Divided Community Project at the Ohio State University Moritz College of the Law and former Director of the Community Relations Service at the United States Department of Justice. He can be reached at Lum.23@osu.edu. William Froehlich is the Langdon Fellow in Dispute Resolution at the Ohio State University Moritz College of Law and the Associate Director of the Divided Community Project. He may be reached at Froehlich.28@osu.edu.

©2016.  Published in Dispute Resolution Magazine, Summer 2016, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

[1] Community Relations Service FY2012 Annual Report. US Department of Justice.

[2] Nancy H. Rogers, When Conflicts Polarize Communities: Designing Localized Offices That Intervene Collaboratively, 30 Ohio St. J. on Dispute Resol. 173 (2015).

[3] David Hunn & Chuck Raasch, The Justice Department’s Soft Side: How one Federal Agency Hopes to Change Ferguson, St. Louis Post-Dispatch, Political Fix (October 12, 2014), http://www.stltoday.com/news/local/govt-and-politics/the-justice-department-s-soft-side-how-one-federal-agency/article_591a2e64-7dd1-5008-b300-0ab9ad8b9168.html.

[4] Community Relations Service FY2014 Annual Report, US Department of Justice.

[5] Jacqueline Nolan-Haley, Designing Systems for Achieving Justice after a Peace Agreement: Northern Ireland’s Struggle with the Past, 13 Univ. of St. Thomas L.J. (forthcoming 2016).

[6] See Divided Community Project, Planning in Advance of Civil Unrest (OSU Moritz College of Law Dispute Resolution Program 2016) https://moritzlaw.osu.edu/dividedcommunityproject/.

[7] Divided Community Project, Key Considerations for Community Leaders Facing Civil Unrest: Effective Problem-Solving Strategies That Have Been Used in Other Communities (OSU Moritz College of Law Dispute Resolution Program 2016), https://moritzlaw.osu.edu/dividedcommunityproject/.

[8] Anthony Kronman, The Lost Lawyer: Failing Ideals of the Legal Profession (1995).

[9] Walter Bennett, The Lawyer’s Myth: Reviving Ideals in the Legal Profession 33 (2010) (describing pillars of the community as local and less formal lawyer-statesmen).  See also Mary Ann Glendon, A Nation Under Lawyers: How the Crisis in the Legal Profession Is Transforming America (1996); Deborah L. Rhode , Lawyers as Leaders (2013).

[10] Kathleen Straus & Scott Schrager, A Pragmatic Approach to School Desegregation, 17 Theory Into Practice 86 (1978).

[11] Kirwan Institute, Kirwan Remembers Rowland C.W. Brown (2013) http://kirwaninstitute.osu.edu/kirwan-remembers-rowland-c-w-brown/.

[12] Approximately 185 US law schools offer courses in ADR, 23 of which self-report as having ADR class requirements. Laurie A. Lewis, Law Student Mediators Wear A Triple Crown: Skilled, Sellable, & Successful, 50 U.S.F. L. Rev. 165, 198, FN9 (2016) (citing ABA Directory, Univ. of Or. Sch. of Law, https://law.uoregon.edu/explore/aba-directory ).

[13] John R. Van Winkle, Mediation: A Path Back for the Lost Lawyer 38-39 (2001).

[14] The President’s Task Force on 21st Century Policing, Final Report 1 (May, 2015), http://www.cops.usdoj.gov/pdf/taskforce/taskforce_finalreport.pdf.

[15] See e.g., Report of the Strategy Summit on Future Local Government, Police, and Community Relations, August 25-26, 2015, Washington, DC, Major Cities Chiefs Association & International City / County Management Association (December 2015), https://www.majorcitieschiefs.com/pdf/news/strategy_summit_final_report_dec_2015.pdf.

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