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Dispute Resolution: Mediation and Planning in Advance of Civil Unrest

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.

As Internet and television reports of Ferguson and many other civil unrest events captivated the public, attorneys steeped in mediation expressed their desire 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.

During civil unrest. Attorneys might help during civil unrest by contacting the Community Relations Service (CRS) within the U.S. Department of Justice—the nation’s civil rights mediators—or persuading local officials to seek CRS assistance. Intervention in community unrest requires a unique dispute resolution skill set that CRS mediators possess: the knowledge and ability necessary to facilitate rules of engagement between law enforcement and public officials at protests and in meetings; the ability to initiate negotiations in the midst of violence; and the 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 and what to negotiate 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.

How to plan during tranquil times. Tranquil times, however, provide fertile ground for those with mediation expertise to help communities plan in advance.

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 (go.osu.edu/dividedcommunityproject).

Who should take the initiative to promote a process for planning during tranquil times? 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 committee can provide the knowledge and experience to plan effectively, credibility within the community, and connections to work with civic leaders to implement the plan.

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 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.

How can a planning group improve patterns of constructive practices, including enhanced relationships among diverse parties and with public officials? Successful mediators will appreciate the need to build trust within a community. Concerns are less likely to escalate to violence if public officials, advocacy groups, and community leaders have already developed patterns of constructive engagement. Planning activities that regularly connect groups within a community for constructive interactions enhance community resiliency, as do frequent positive meetings between public officials and community representatives.

A community that has developed a shared identity, one that spans interest groups, has extra motivation to preserve peace as it works through differences.

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?

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. 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. The experience many attorneys now have with mediation equips them to play 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. Today’s narrative makes most community leaders receptive to suggestions about planning initiatives.

As all mediators know, conflict can be addressed at its roots, and this is where we think mediation-wise attorneys can work to help communities recognize and address the divisions that could tear them apart—and plan ahead to collaborate during difficult days in order to achieve better days.

ABA Section of Dispute Resolution

This article is an abridged and edited version of one that originally appeared on page 10 of Dispute Resolution, Summer 2016 (22:4).

For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.

WEBSITE: americanbar.org/dispute

PERIODICALS: Dispute Resolution magazine, published four times per year; Just Resolutions eNews, electronic newsletter published ten times per year.

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BOOKS AND OTHER RECENT PUBLICATIONS: Appellate Mediation: A Guidebook for Attorneys and Mediators; Inside Out: How Conflict Professionals Can Use Self-Reflection to Help Their Clients; The Choreography of Resolution: Conflict, Movement, and Neuroscience; Sharing a Mediator’s Powers: Effective Advocacy in Settlement.