Mediate with LH, LLC

Two countries, two tragedies, separated by thousands of miles share similar characteristics and offer lessons learned to be applied. In recent months I’ve worked on topics which examined Stalins murder of Ukrainians in the Holodomor (Genocide) and the collapse of Hawaii as a sovereign nation in the 1800’s.

Both had a significant impact on native populations which carryover to today and from an overall perspective offer insight and lessons learned to be applied to what we do as facilitators and mediators.

From Ukraine’s perspective I had the opportunity to work with film maker Yurij Luhovy and a recent visit of 5 Mayors from Ukraine. From a Hawaiian perspective I structured an episode of my series on Avoiding, Preventing, and Resolving Conflict – Jones Family Adventure – to deal with culture and in the educational component of my episode interviewed social anthropologist Lynnette Cruz who shared with me her insights into Hawaii’s culture.

In putting together the videos reflecting these experiences a couple of immediate similarities arose between the two cultures. First, the love that exists by both groups for their culture. The second are physical in nature. Lynnette talked about cultural traits and in those included a welcome to be accompanied by ceremony – Hawaiians offer leis and chants – Ukrainians offer a verse accompanied by bread, salt, and sometimes honey. Both have native dresses. Ukrainians love embroidered and colorful clothes while Hawaiians have their own expressions of dress for ceremonies – I’m not going to try and describe the various combinations. Both know enough to bring gifts and offerings to their hosts and both know the value of being a host – practicing generosity in both roles.

Ukraine’s Holodomor (Stalin’s genocide) is not without controversy as there are deniers – bad economic policy led to the starvation of millions, execution of more, and essentially a death sentence to those deported to gulags – however Yurij Luhovy’s documentary continues to build the case that Stalin was determined to wipe out a cultural renaissance occurring in Ukraine which he felt was a threat to his consolidation of power and his desire to foment and supply worldwide communist revolutions through industrialization paid for by agricultural products from Ukraine. He brought out the absolute worst in people by moving Russian overseers into the farming regions and appealing to the worst instincts of farm laborers who now became enforcers of forced collectivization and charged with driving or exterminating demonized “kulaks”.

Hawaii’s experience came from the influx of foreigners with their diseases and treatment of the native population which was not ready nor prepared to deal with the drastic changes going on in their midst. Diseases of all sort from sexually transmitted to pox’s to leprosy killed many, decreased birthrates, and caused a loss of native identity and culture which only recently is in renaissance along with calls for justice for natives and “locals” deprived of native lands, sovereignty, and searching for a united voice.

Ukraine is newly independent, declaring independence in 1991, and likewise trying to identify their place on the world stage, national identity and unity.

In both cases spirituality plays a heavy role – both are deeply spiritual – it is part and parcel of culture.

The search for a voice goes to the heart of matters for our field – fostering, promoting, and facilitating dialogue amongst the various and diverse factions and even with their opponents to avoid and prevent conflict – taking into account and using native processes which have proven value from the past.

And there are factions and opponents in both places covetous of the land, resources, and native peoples to exploit. Insofar as public plicy topics to consider, one of the first thoughts that come to mind is the deep seeded freedoms both cultures enjoyed during those periods of sovereignty over their own lands. In Ukraine the Cossack brotherhood was free roaming in the steppes. In Hawaii isolation provided freedom until the arrival of foreigners. Facilitating discussions of that love for freedom can provide an impetus towards working together rather than serving others at the cost of their fellow natives. Along with that is to inform, educate, and promote a “free press” in its broadest sense – traditional and current social and other forms of electronic media. Yet another are discourses on culture and how the past fits into the present and for those who are yet to come. However, the key in my mind is an awakening amongst the youth to their cultural roots, embracing it, and growing the culture rather than abandoning their culture for the culture of others. This does not mean exclusion of locals or visitors but reminding visitors they too have roots.

Dialogue also encompasses dealing with disagreements before they grow into conflict, which if unresolved grows into dispute – break down in communications – and predictable breakdowns in relationships. Intercession plays a key role and such intercession has to be capable of dealing with issues from the broadest to the smallest – in a peaceful and productive manner – with problem solving the norm.

Taking on tasks in situations like Hawaii and Ukraine find themselves requires skills and casting off crude intimidation, physical repression, and especially violence. I don’t envy members of our field who have the courage to take on such tasks – but today they are most needed because options may be running out to safeguard/ build/ and enjoy freedom too often lost with lessons relearned.

Recently I had an opportunity to cover business transactions involving extended family members with two distinguished attorneys/mediators and guess what – their advice - put family business agreements in writing – in a way that is informed and enforceable – so use someone who has the expertise to make it so – yes – that’s an attorney. Why, because “stuff” happens, and in addition in creating a writing you have to think through and prioritize and anticipate changes which might occur – for example divorce, death – rather than when facing such changes - that is not the time to figure out what was meant at the time of formation of the transaction. Why else do this? Not only can the deal go down but so can the familial relationships. Oh and one more thing - when you’re the one responsible for preparing the agreement be generous – what? – yes, be generous on the terms – include responsibilities – and by all means include mediation as a means of conflict resolution. 

And when structuring the writing take into account that even if there is a formal document -like  for example a bill of sale - a separate agreement may be needed to meet the needs of the family members which reach beyond the formalities of the transaction. Clearly the above advice is meant to prevent and avoid conflict say ten years from now when things like age have taken their toll – we were a bunch of “mature” guys sitting around the table talking story and agreed that our age, forgetting is part of our reality – or the players have changed – for example a new spouse with ambitions in regards to the family transaction – or a question of succession comes up with the passing of one of the original family members involved in the transaction. If you’re like me and believe a family bond is sacrosanct let’s not kid ourselves - its better to anticipate, think through, and prioritize our most important objectives in a business transaction and doing it in writing to take anticipatory steps to save a relationship. And, don’t forget to update your agreement when circumstances change. Thanks to the two Chuck’s for their insights into family business transactions.

We air our discussion on local Community TV.

Peacebuilding encompasses avoiding and preventing conflict and it’s a set of skills our kids need that gets more critical every day. What’s it built upon these days? In my day it was rather simple and based on the concept drilled into us from sources like the Ten Commandments – “love your neighbor as you love yourself” – plus  an extension – “do unto others as you want them to do unto you” – and – “blessed are the peacemakers”.  Somehow we’ve grown those simple concepts into a panoply -  a smorgasbord - of psychoanalytical values (babble) which seems to grow in number by the day.  Perhaps we do great in teaching these skills to our kids – are they listening? Are adults (be they parents, teachers, coaches, clergy) using the right channels by which to get through to the kids already overwhelmed and overactive in getting and sharing information. Who’s shaping their minds and who’s acting  as peacebuilder “models” for the kids? Are adults sending the types of signals which foster, nurture, and grow peace?  What set of values are adults providing to kids which mold peacebuilding into their nature? Kids have an innate curiosity – are adults channeling their curiosity in peace?  Kids and adults want acknowledgment – are kids getting acknowledgment and recognition for being peaceful?

Hey what in the world is all of this about?  Well, I recently filmed a peacebuilding workshop where teachers, parents, activists, and professionals met to discuss and to work the topic. The workshop triggered, poor choice of word, reflections about just how lacking efforts worldwide seem to be in stemming increasingly violent and deadly acts by individuals, groups, and even nations. It makes me wonder about what not only we, but our children and those who are yet to come will be facing as the means by which to practice violence become ever more easy to obtain and utilize without a countervailing drive for peace in our kids.

Wringing ones hands just won’t do. We need a revolution in the way we build peacemakers – imbue peace with value and with benefits which create an abhorrence of violence so strong that even the most prone avoid and prevent it. What’s going to do that and who is going to drive this revolution?

The how seems to, at least to a large degree, lie in models – in the broadest sense of the term in todays world  which still encompasses humans however must include machines, imagery, media, software, etc. all those things which pervade today’s kids perception of the world.

Take media for example – how many best selling games are there where becoming “supreme peacebuilder” is the highest level achievable? What is the highest award an individual can receive for peace – Nobel Prize? – Some think this prize has become a politicized joke rather than being based on objective and measurable criteria. Recognition? Reward? Relevance? Who are the models who count? Is there a popular sport where achieving  peace scores points, entertains thousands, adulates players, and pays them astronomical sums? Is anyone offering a bounty for achieving peace?

Let ‘s face it peace isn’t sexy or entertaining and some probably consider it downright boring and maybe even too difficult to practice.  However is our era providing another turn at lessons relearned rather than applying lessons learned? We can’t just wait for a revolution. So what can we consider?

Keep concepts of peace simple which makes it easier to model as well as to learn and apply. If you don’t like the Commandments come up with something equally simple however base it on at least a couple of thousand years of experience because what worked in the past worked – hasn’t it? Well at least sometimes which is better than any statistics because results were observed.

If you’re somehow responsible – even if by pure circumstance – to be a model for kids - be that model based on these basic and simple principles – unless you’re a psychologist or trained professional with results to prove it.

On this earth we are all neighbors - lets be good ones and at least avoid conflict even if we can’t prevent it . We’re not CEO’s so we don’t have to worry about being bad ones because avoiding conflict is the worst thing a CEO can do – is that still today’s management gurus guidance?

When dealing with kids, and this is one of the messages from the workshop I filmed, acknowledge them and respond to their curiosity – don’t ignore or send them away – if you can - answer their questions and guide them to seek their own answers.

Watch your language – it might be cool to use what we used to call the “boatswain mates” language and even though kids seem to make it a point to be totally repetitive of expletives – there may be a few who don’t – and- believe me they will lose respect for you in a hurry – I’ve been there and it burns in my mind.

Be there to prevent conflict – intercede or at least guide in a way which gives priority to prevention rather than conflict resolution or picking up the pieces.

And finally I still think “blessed are the peacemakers” so if your in mediation you still have by highest regards – spread the word – intercession - and it does not have to be adversarial - in conflict works.

Criminal proceedings pit authorities, representing us as a society, against someone or an organization who is accused of violating laws which define the line between lawful and unlawful behavior. Behind the laws there are procedures which need to be followed in order to bring about “justice”.  The authorities are trained to administer and uphold the law in the name of “justice”. In our system an accused is assumed innocent until proven guilty at a trial or if an accused agrees to plead guilty without a trial or until such time as prosecutors acknowledge there is insufficient evidence to prosecute and decide to drop criminal  charges. The truth of the matter is that prosecutors and/or judges do not have to treat an accused as innocent if they, for example, feel an accused is a threat to the public or, as another example, there is a fear an accused could flee. Prosecutors are charged with conducting a thorough investigation with the help of police or other investigative resources at their disposal. So, the state is the plaintiff in the case of a crime while the accused and his/her defense team are Defendants in a case. To be found guilty of a crime there are standards of proof required including “beyond a reasonable doubt” which in the case of a jury usually means they all have to agree the charged crime has been committed.  The burden of proof that crimes have been committed lie with the prosecution. A judge, acting under their own set of rules which including discretion presides over proceedings. All representatives in a criminal case are ethically bound towards a pursuit of justice. However, and to various degrees, sometimes these proceedings become a dangerous and vicious game for a variety of reasons. And when this happens an accused, an accuser (for example a rape victim), the public, and the criminal process are damaged.  This blog addresses mediation in the context when prosecutors play games with an accused Defendant and the public in a criminal process. This is not meant to convey an impression that prosecutors don’t have extremely tough and often thankless jobs. They do and we are blessed with a system which has a very high level of integrity nor in any way to demean any individual or state organization.

Let’s start with an accusation. Let’s say one person accuses another of doing something which may or may not rise to the level of a crime. It is, if it is couched or coached, in a way which raises the accusation to a crime. Let’s say a prosecutor, when considering the accusation sees it as an opportunity to do harm to not just an accused but an institution to which the accused belongs or assumes that by definition because an accused is a member of an organization they must be guilty of the crime and directs vigorous police action – arrest the accused – he or she is a threat to the public or may flee. Let’s say policemen and investigators assume guilt and given the instructions they are given by prosecutors don’t conduct a thorough investigation – it just is not needed – prosecutors must know something we don’t so let’s just get on with it. Let’s say prosecutors know the accused has very limited resources – he’s a foreigner – so keep him in jail – who’s going to represent him or her – public defender – we eat them for lunch – and decide to run the case to a grand jury which they know is a slam dunk for an indictment on a felony charge – a judge has no choice but to set a very high bail with the prosecution knowing we can hold the accused until such bail is posted – as accused does not have the resources to post it so it will help us get a plea (victory). Oh and by the way he’s being held at a correctional institution and even though in detention he’ll be treated like a convicted criminal – so another reason he or she will cave and plead – so we win. So now all we have to do is wait – we have up to six months before we have to go to trial – there’s no way he’ll last that long – again we win. Wait a minute who’s this defense attorney who has signed aboard to represent the accused? This may mean trouble – so one tactic we’ll use is to make sure this case takes the full amount of time before trial because accused cannot possible pay this attorney and let’s do one more thing. Let’s change prosecutors to make it more difficult to understand our agenda – misdemeanor cases for the first prosecutor – and a rookie for this case as the second – if we lose - blame it on the rookie. What’s this - motions being submitted by this new attorney – we can work with the judge and plead we don’t have time right now because we’re vigorously pursuing other cases – whew- that’s working. What’s this - new eye witness evidence with sworn affidavits not only contradicting the accusers testimony but destroying the accusers credibility – these new witnesses must be lying and/or have been influenced by the defense. Oh, oh the trial is at hand – we created the maximum pain we could – let’s just get it over with. Jury – not guilty. Oh and one more thing, when this occurred we made sure the press got it and ran with it – and boy did they – a field day. Now at the end the press is totally uninterested – one reporter came to trial- witnessed the proceedings and concluded “another he said – she said case”. By the press  - oh we have to print something so let’s just write about the results and do we have a photo of the accused – the only one we have is from Crime Stoppers with the accused in prison garb – that’s good enough – run it.

Ok you say  enough fiction, this could not happen, so what’s the point in the context of avoiding, preventing, resolving conflict and mediation? In cases like outlined above the pursuit of justice is too often a game which catches the judiciary between a rock and a hard spot and there are places where a third party intermediary can be a crucial component in determining whether or not a case, as it being pursued,  is  consistent  with the pursuit of justice. A foolish notion you say – well take a look at the price that was paid in the above example – resources were wasted and lives and careers ruined. However, more importantly, a mediation process is supposed to bring objectivity, reality, and communications in a confidential manner to the dispute – but more importantly it is problem solving and negotiations brought into an arena where courts are crowded – trial dates are far in the future – and is justice being done? Are cases properly vetted during the intervening periods between accusation and trial judgments/result? What are issues that only a jury can decide and will they get properly vetted before they get it?

So if we consider mediation in criminal cases - are there challenges – absolutely – there’s fear that mistakes will be made – there are challenges with confidentiality – crimes are supposed to be treated with transparency (in which there are many exceptions) and public (a lot happens at trial which is not public) but never mind confidentiality has to be defined. The biggest challenge however, may very well be what would an objective of mediation in criminal cases be? Would it be an evaluation, a facilitative problem solving process, a negotiation? What would the outcome be – an agreement between defendant and the state – is it a settlement conference – an adjunct to one of the pre-trial hearings- what would the interests of the defendant be should mediation be utilized and how would they be protected? However defined it might require legislation and how would the public react? To what kind of cases would it apply – misdemeanors, felonies, murder? What kind of resources would be required and where would they come from – court appointed – chosen from a list of candidates submitted by defense and prosecution? What would a judge be able to do with whatever comes out of a mediation- accept it, reject it and how would an appeals court look at what came out of such a mediation? Too many challenges and more you say?

Well in the example provided above it is clear to me something is lacking and these include lack of objectivity – how could anyone miss – especially a competent prosecution team - the objective reality – no case here? Why are we pursuing this case? No way out – we have to go through trial. The rights of an accused are not only violated but are being trampled – “I’m being treated like I’m guilty for the maximum amount of time possible” – and the worst is that despite this travesty in justice an accuser who’s credibility is not just undermined but destroyed in the eyes of peers – the jury – walks away with God only knows what story – they conspired against me – I continue to be the victim – while the accused and family have to try to rebuild their lives. No there has to be a better way and mediation should be considered.

Problem solving, evaluating (when called upon), negotiating, objectivity, and confidentiality are what mediators provide in dispute situations and its difficult to see how these skills are not essential but at least in the above example apparently missing where the rigidity of the process, zealousness, and an agenda replaces common sense and make the pursuit of justice a sham to be forgotten when the case is concluded with no lessons learned and no accountability to the public.

I’m sure there are points which others may wish to address that speak to games played by defense teams which may enlarge discussion about the use of mediation in criminal cases.

Pubic Capital Projects utilize taxpayer dollars- state and/or federal – and are managed by appointed officials utilizing private contractors with requirements for transparency and public accountability. In Hawaii we’re underway on the states largest ever capital project in building a heavy rail system from the Western areas of Oahu to downtown. After attending only one meeting – shame on me as that’s the only one so far I have attended – I was somewhat in shock. The meeting of the Board was public – with reporters and cameras running – and about 20 members of the public present – to see what’s going on in a $5 Billion dollar Project. I don’t know why I am surprised as I was briefly involved with our Neighborhood Board and at times no members of the pubic showed up. However our rail project is in a different universe in terms of impact on this island and State.

When it comes to communications, and as was pointed out by the board to their communications consultant, it is no longer just about marketing the project and reacting to growing opposition. So what’s it about - a fascinating question when trying to avoid and prevent conflict with stakeholders and public? And, can a consulting group really make it happen. Failure to communicate is not an option.

For one thing communications cannot be a monopoly.

You need to know the strengths and benefits of a project but also understand the weaknesses and understand and empathize with opposition forces – they will certainly have valid points – they are not obstructionists just to be so.

Presentations, surveys, use of media are just not enough.

You cannot and will not control information – it’s a futile effort.

You have to be able to take and act on criticism.

You have to be proactive and not just reactive – have a pulse on the situation.

You have to be customer oriented. Your audience dictates what you provide. You don’t dictate to the audience what it is you think they need to hear.

Communicators are intercessors, maintaining a balance between your clients demands and the publics needs – and if you can’t establish or be objective then you need to engage resources who are.

You have to formulate a report structure which highlights the good, the bad, and the ugly – that’s transparency.

Your communications plan has to ultimately result in mutual agreement with the public rather than trying to shove things down their throats – that will not work. Too much is at stake.

How did I become so smart in only one meeting – being a mediator and facilitator requires me not to be a manipulator – but someone who has to walk that line one case at a time – rail happens to be a huge case but similar principles apply – public and project have to reach mutual agreement.

Public Forums where you are face to face with people  facilitated by third party intercessors produce results. During the last 2 years or so I’ve become involved in public forums – health, public policy, focus groups, and even transforming training into forum type discussions amongst professionals. My conclusion to date – public forums are not for the squeamish. When there is a positive outcome it feels great – screw it up and it’s a disconcerting and humbling experience. So why do it? Forums are needed more than ever. Why? Because we’re getting too used and acculturated to polls and because without them significant mistakes by decision makers continue to be made at a time where productive decisions are most needed. We no longer live on an island – I do – but it is a (disputed) part of the US. So what lessons have I learned from forums?

You have to be good at working with groups which range from the totally disparate to those who are uniformly positional in their view and many shades in between – for example dominated by one individual.

You need a warm-up so they can get to know you and - you them.

You need to be agile and flexible because if you’re not you can easily lose their confidence resulting in defensive or aggressive behavior.

Although you may not need to know the subject you have to able to summarize, reframe, and demonstrate you have captured the inputs which are being provided.

You have to be free of bias and demonstrate such freedom because you will be challenged.

You have to be assertive in a way that does not become identified as aggression.

You have to have some metric whether or not the group is producing and if it is not knowing what to do about it.

You control process but such control cannot be perceived as manipulation.

You have to be ready to deal with being called out (hopefully in a verbal not physical sense) and be able to deal with it effectively.

Ok enough – so you say all these things above – how do you get there? Research, study, practice, work with experienced facilitators, get mentored in the process, observe and learn, facilitate – followed by gleaning lessons learned and applied. To conduct research these days you have to be adept at coming up with search terms, scan the results, choose wisely - read and apply what you’ve learned.

Practice in front of all types of audiences – friendly to hostile – let yourself be observed and critiqued. Videotape yourself in one of your forums and review and re-review how you’ve done – make the necessary adjustments.

Develop a rhythm that suits your capabilities.  If you think about teams which win you will probably notice that they establish a dominating rhythm whereas their opponents do not. Its like a dancing – you may know the steps – the challenge is in leading your partner into a sequence which results in a smooth and graceful experience both for yourself and your partner.

Facilitating forums is a privilege and an honor so doing it well and successfully should provide a great deal of satisfaction and produce results which might swing processes more into balance between polling and the mining of the mind which takes place in forums.

History is a great teacher. However, to learn what it teaches us demands effort and wisdom to apply the lessons learned. Too often wisdom is lacking as lessons are re-learned and not applied time and again. So, because I’ve had a need to conduct research for several programs in video let me share a historical scenario and let’s see what Hawai’i and it’s experience with epidemics, focusing on leprosy, offers as a lesson in the public policy arena if and when we are called to be intercessors as mediators or facilitators.

Like smallpox, syphilis, cholera – leprosy was unknown to native Hawaiian’s until it made its appearance around 1850. It spread quickly. By 1865 the monarchy and legislature passed an Act to segregate those with, as well as those suspected of having, leprosy. A perfectly logical act – no? After all the disease had reached epidemic proportions, there was no effective treatment, and leprosy was a death warrant. The Act was called “Act to Prevent the Spread of Leprosy of the Nation of Hawaii” and it was strictly enforced – eventually other pieces of legislation were added that made it a crime to help anyone infected evade being segregated to a jut of land on Molokai island surrounded on 3 sides by ocean while the fourth faced imposing and hard to climb cliffs.

The segregated lepers, it was assumed, would be able to make a subsistence living through herding, agriculture, and fishing. Certainly they would build shelter or themselves and be self policing and governing in Hawaiian fashion – eminently humane however that’s not quite the way it turned out until the arrival of Father Damian and after him other religious and medical professionals came to support the sick and dying.

So what went wrong? What goes wrong time and again?  Well let’s start with a global perspective followed by reflection on the period in Hawaii’s history. The 1800’s were a period of colonialism for the so called Western Nations who appeared to be destined to rule the world. There was racism coupled with  a feeling of superiority by the colonial nations over native populations. Slavery was still practiced in America. Consequently there was a strongly held view that racial inferiority by natives was aptly demonstrated by their lack of immunity to diseases.

As for Hawaii - at the time Hawaii was an independent nation governed by a monarchy, which to some degree was trying to emulate Western monarchies, trying to find its way with  foreigners gaining increasing influence (and would eventually overthrow the monarchy at the end of the century). In the area of health they were the experts since they brought forth their knowledge of medicine. So it is little surprise that by the time leprosy had grown into an epidemic the Hawaii Health board was dominated by Westerners who shared the global view - inferiority of the native population and little regard for native culture, practices, and lifestyle. So they pushed the monarchy into adopting a segregation policy and aimed at ensuring enforcement was focused on native victims. They exhibited disregard to the native populations ties to their land, ancestry, and family. So in addition to the harm the disease was calling to physical health - being segregation had a significant and negative cultural and psychological impact on Hawaiians.

It is interesting to note, from the literature, that Hawaiians did not look at leprosy the same way that foreigners did. One example cited is in regards to the disfigurement which progresses with the disease. Hawaiians did not feel the revulsion typical of foreigners in the presence of lepers. They did not have the same fear of contagion from contact with lepers and family ties were not to be disturbed. Yet it happened, was forced upon them, and along with it came further confusion about culture, protest, and contributed to loss of identity.

So Father Damian, now a saint to Catholics,  already present on the islands doing missionary work is offered an opportunity to work with lepers for a limited amount of time and instead decides the colony is where he belongs and remains there until his death. Arriving at the colony with his Bishop – conditions could not be worse – people are acting and living like wild animals with no shelters to speak of and debauching themselves through opium, sexual promiscuity, gambling, you name it  and why not we are the living dead aren’t we. Along with this behavior there is no governance only despair.

Father Damian decides to make a difference and acts. He physically intercedes to stop debauchery ( never fully successfully) and takes steps to energize dignity. He uses physical acts – like his own skills and labor – and religion to act as catalysts towards a new beginning. And, does he write letters? – he is prolific and perseverant. Before too long his story becomes internationally known and contributions start pouring in. He is a catalyst, including his own physical acts at providing houses, a water system, a place for worship, and a true cemetery for the deceased. He is not without controversy. One cleric writes a destructive portrait of Damien which they write is itself destroyed by none other than author Robert Louis Stevenson. Damian pays a heavy price by contracting and dying from the ravages of leprosy. His compassionate approach comes to the notice of the monarchy which grants him its highest award. Today the area used for segregation is called Kalapapa and it still has a few patients cured of leprosy and is sacred ground – however – all of Hawaii is sacred to natives.

So what’s the lesson in the pubic policy arena to me if and when I am asked to intercede?

1.       Racism in any form must not be used as a means of dealing with epidemics because judgment is not only impaired it becomes a bias not founded on scientific but rather emotional grounds and as emotions go up judgment goes down.

2.       Alternatives identified must take into account “culture” in a very broad sense because the impact of every decision can expand beyond the epidemic itself and into the general population.

3.       Alternatives identified need to include objective consideration by representatives of the culture who must have a say in the decision.

4.       Decision makers must include consideration of steps to be taken to ensure that the number of assumptions made are minimized – as an example in Molokai’s case what support was needed on site instead of assuming lepers would make their own accommodation towards subsistence living.

5.       Strong leadership is required from the beginning (including on site) which is built into decisions and bought into by the victims and supporters needed to deal with the situation.

Interestingly I have not found any “what if” studies which would indicate what would have happened if segregation had not been the means by which this epidemic was dealt with. Would the number of cases continued to grow if Hawaiian families had been allowed to care for their own sick? What I have found is that there were foreigners who became lepers who somehow managed to escape Molokai but not the disease itself. The only leper exiled to the colony I read about was about a “black” man who was suspected of being infected, sent to Molokai, became a pest, evaluated as not being infected and ejected from the colony despite his protestations to the contrary.

Hopefully these observations have some validity based on the research I have done – not cited here and mostly internet and discussion based – in this public policy arena. Beyond this the issue of what happened and is happening  to native Hawaiians and ‘locals’ is many – many – faceted and will hopefully include re-learning lessons from the 1800’s followed by application to present day and future scenarios.

In mediating divorce cases mediators take on tremendous responsibility – we’re dealing with people in a highly emotional state and as is well known as emotion goes up judgment goes down – further one person is ready for divorce while the other is either not ready or hoping for counseling – and often it gets worse. There are children involved and other relatives who are significantly impacted and/or influencing the proceedings. Behavior may not be indicative of what’s going on in a persons mind nor their emotions and emotions can change in a flash. Mediators may feel like they are walking on eggs and they are – one wrong move and it’s over – impasse and of they go to battle it out in court.

I only deal in coming up with parenting plans. In Hawaii, the moniker used by family court is “best interest of child or children”. As a former family court judge recently observed people coming before the court and, likewise in mediation, are in need of real, workable, practical “solutions”. But there is another associated issue  that prompted this blog entry (which repeats much of what I’ve written on this subject before) and that is another comment made by the former judge – ‘it’s easier to mold kids than it is to fix broken adults’. That statement really hit home because when I think about it in conducting parenting mediations, I’m involved in setting the stage for that molding of the children in a very difficult situation which adds to the sense of responsibility in mediating parenting agreements.

The third challenge in parenting planning is that the concept of family has changed dramatically and into some forms towards which there is flimsy experience on how such a “modern family unit” functions in the situation it finds itself in this divorce action when it comes to the “kids”.

So, what’s it to mediators in mediating parenting issues as to concepts like “best interest of kids”, family unit, molding kids is easier than fixing broken adults? - I’m just an intercessor responsible for helping clients reach agreement of their making – besides I have to be able to build walls between myself and clients.

Well, as a mediator, somewhere, and not too deeply submerged, there’s a set of principles underlying our mediation process and personal ethics. I haven’t had a case yet in which a parent will say – “I don’t care about the kids” – but - enough cases in which kids are used as cannon fodder to accomplish other objectives in divorcing couples squabbles over distribution of assets and to drive up or inflict emotional pain on a spouse.

I think that keeping in mind the former family court judges wisdom and applying it to parenting planning can help mold the practical and real solutions needed to serve clients and society in general.

What do Former President Clinton, birthers, and global warming opponents have in common? Arguably and based on evidence – denial. What kind of denial – of fact – of impact – or responsibility – denial of denial? We all do it – as kids, with a few tragic exceptions - we were caught in a variety of situations where we denied some infraction of home or school rules – “it wasn’t me, it was my sister Dora”. Unfortunately as we age the issues to which denials are applied get more serious – take the example of sexual predators – they are experts in serial denial. Two colleagues – Craig Robinson and Louis Chang – gave two presentations in 2011 in which denial was discussed. I am currently editing the presentations for public tv. Let me give you an example of denial – now again keep in mind there are always two sides to each story and this is no exception – and no judgments are made in this blog entry.

Let’s assume that in our case study we are dealing with an international organization with chapters and chapter leadership, employees and members. One chapters employee visits another chapter and is accused of a crime by a member of the other chapter. The employee is arrested, jailed, rushed before a grand jury, then a judge orders bail pending trial. The time between indictment and trial is almost exactly six months, the legal limit before charges could be dropped because of a lack of prosecution. Upon hearing of the employees arrest the accused employer puts the employee on administrative chapter while the accusers chapter throws the employee under the bus and distances itself from the chapters members maintaining contact and offering services to accuser. As the time for trial approaches and through discovery, cracks appear in accusers case to the point, as the Terminator – Guvernator – now terminated would say – “you could drive a Humvee through the cracks” – but the accuser and Prosecutor persist and the charade continues into trial with a quick decision – not guilty.

The accused employees chapter reinstates the employee and several months pass when the members of the accusers chapter members learn – after the fact -that the accuser is still able to influence their own chapters leadership to the point that the accuser is granted permission to take something that has been with the Chapter for many years under a questionable claim of a right to the item.

The above is a framework for discussion and is not meant to convey all of the circumstances or make any judgment – however- as laid out – hopefully - it creates scenarios of “denial” followed by possible types of denial in play in several of its forms.

Based on the lectures by Craig and Louis and my own drivers of avoiding, preventing, and resolving conflict the context of denial is based around avoidance of conflict and blame and denial help people deal with fearful circumstances and dire consequences (in this case – scandal). Let’s see if we can apply this approach to denial as it evidences itself in the above case.

1.       At the accusation stage. The accuser had on  their face - convincing credibility and so the claim was taken as a given by all except those defending the accused – everyone else was in denial that accuser could be making up the charges because there didn’t appear to be any other explanation than  - accused did it. Let’s look at what form denial took place by the accuser chapters leadership – disavowal of the accused – accused is at my remote location without our permission to perform chapter services. This form of denial might be a denial of responsibility – the shifting of blame away from themselves – and/or  – denial of impact – enabling the avoidance of a sense of guilt – and/or denial of awareness – we’re in a different state of awareness – however – due to what?  Usually associated with a claim of being drunk or on drugs – probably not applicable here – we hope.

The Prosecutor– well that’s a whole other situation – they sat in the best position – a “credible” accuser and a police investigation with an accepting grand jury – indictment – what else do we need – accused from out of town – Flight risk? – answer – high bail – and who is going to defend the accused anyway – public defender – we beat up on those attorneys every day – worst we can do is a plea deal –same as a conviction. Defenders were on the opposite side of the scale – we just don’t accept accused is guilty – were they deniers of facts? They find a great attorney – no denying that.

2.       During discovery. As discovery proceeds defenders start to accumulate evidence – of contradiction in testimony by the accused, additional witnesses are discovered, physical evidence doesn’t add up, previous findings do not hold up. Prosecutions response – deny impact? – this case is creating harm but that’s good isn’t it? – are we pursuing justice or pursuing getting a conviction? A conviction! – reducing or eliminating a sense of pain or harm from poor decisions – incomplete police investigation – failure to pursue discovery. Denial of cycle? – we made a poor decision to begin with – overcharged – felony – probably can’t get a conviction but let’s just go for it? Failure to change the focus from the accused to the accuser? Accusers chapters leadership – denial of denial? Even though the “evidence” is starting to mount lets just continue with self-delusion. Member of the accusers Chapter – participation in discovery brings questions about accusers motives – recollection of additional people who were there at the time of the incident and questions which start to change perceptions about time line of incidents – however – denial (no name for it) – we can’t do or say anything about this because we are potential witnesses and can’t talk to each other and we can’t defend accused.

3.       At trial – Prosecution still doesn’t get it  - we’ve got this case in the bag – we thwarted the defenses attempts to get this case dismissed – all we need is the accusers testimony – denial of facts? – There are so many contradictory facts and these charges require proof beyond a reasonable doubt – all jurors must agree – did we prepare our witnesses? – No let’s change prosecutors from the time of charge to the time of trial – hey that’s a good way to deny responsibility – blame can be shifted. Accuser Chapter’s leadership – still don’t get it – just stay out of it – provide support to accused and everything will be alright – it’s not our problem. Members – we have to tell it like it is – so like it or not answer the questions posed by the defense and the prosecution and let the jury decide. It’s time to close at trial – Prosecution – we know we didn’t prove our case let’s deny responsibility and blame the witnesses – accused chapters members conspired – where’s the proof? – none offered – none there – jury doesn’t buy it. Not guilty.

4.       Ok – now the denying will stop won’t it? Of course not – the press “jumps” in – of course when the accusations and arrest surfaced they were all over it – this international organization allows the accused to come here and do what accused has been accused of doing – another crime by this evil international organization we’re not going to let you get away with that. Afterwards – a mere blurb - this was simply a case of accuser says versus accused says – missing the whole point – there are issues here worth exploring – how did this case get to where it did? Oh, and by the way let’s show the accused’s picture in prison garb from Crime Stoppers. Oh I’m sure we really tried to get a picture of accused in his organizational uniform! How can you possibly think that way – deny being overzealous initially – we’re just an entertainment medium and who remembers anyway.

5.       Afterwards – Accuser Chapters leadership months later – Ok we need to divide the assets from the accusers Chapter that way we’ll all forget this ever happened – who want’s it? – or - accuser petitions Chapter leadership and claims ownership of a chapter asset. Sure - denial of awareness – we believe accuser even though discredited at trial – accusers claim doesn’t need President Regan’s axiom – “trust but verify” – and of course we’re still in contact with accuser  even though we are disestablishing the Chapter and even though we haven’t notified other members of the (former) Chapter – what could they know – denial of cycle? – bad decision by accusers Chapter leadership from the get go – so let’s continue the cycle – we only have to deal with the pain of accuser and not members – this will end the accusers pain and screw the membership.  Too harsh? Sorry about that.

I hope the above framework and one interpretation provided above provides a good example – true or not – about denial and the potential harm of denial - keeping in mind that many other factors come into play in complex situations like the one exemplified above. These kinds of situations can’t happen! Or can they and if they do – do they happen based on denial? I deny any similarities between any real case and the above example! Maybe we should consult the experts on denial, former presidents for example, and maybe they can put a different spin on things and claim denial is a myth. So what do you do in response to denial? – that’s for a later blog entry – I’ve got to figure that one out. If you know please chime in - we can all use the help.

Since 2012 is creating much interest in Maya civilization it may be noteworthy to say a few things about the Mayas in the context of avoiding, preventing, and resolving conflict. Why? Because it is fairly clear from what I learned in a recent trip to the Yucatan that their failure to collaborate may have been a major reason why their empire collapsed – so take heed - history repeats itself and lessons learned are relearned and not applied.

What we know about Maya culture is that which was passed down to us by the conquistadores who in their wisdom destroyed the Maya written texts or codex’s, from oral history and traditions found in today’s Maya’s, and from archaeological work studying Maya ruins. There was a period of time in which the Maya’s just disappeared. Their “empire” was located in the Yucatan, Belize, Honduras, and Guatemala. Their Empire has been divided into the pre-classical, classical, and post classical period. Their civilization was a combination of politics, religion, and science – numbers, astronomy, architecture. They combined the three sciences to create a ritualistic and class based system. At least in the Yucatan – where there are no above ground rivers they were dependent on rainwater collected into cisterns and underground wells which were fed by underground rivers. Their agriculture and food source was based around corn. They further combined these factors to form a ritualistic religious system requiring human sacrifice to keep themselves going – blood renewed the earth and themselves. They needed human sacrifice and it appears they fed on blood lust as a means by which to keep the population in tune with their growth. This need for human sacrifice led to continuous warfare – we need to capture others to sacrifice or else we have to sacrifice ourselves. At the outset they grouped themselves into city states and towards the end they were only able to consolidate to about 4 or 5 city states and by that time they had been severely encroached upon by such other civilizations as the Toltecs and later Aztecs. At the same time they were constantly having to deal with an unforgiving and relentless jungle and nature – drought.

The Maya’s were fantastic and creative observers – came up with calendar systems based on the sun and the moon – linked these cycles to mathematically position their pyramids in precise manner with regards to the suns solstices and equinoxes which is a source of wonder even today. They were able to extend their knowledge of geometry to guild pyramids of great height – requiring what we today would call spherical trigonometry. At today s ruins thousands come to watch the suns shadow descend down a pyramids side creating wings onto a balustrade built in the shape of a mystical serpent. There are many other wonders about what they were able to do.

Yet today their descendants live in poverty - their ancient architectural and cultural accomplishments lie in ruins and one has to wonder what would have been had they been able to collaborate with each other and problem solve the real world problems they faced instead of relying on ritual, a class system, a murderous combination of religion and politics which -  as long as it worked - kept their society together. As soon as ritual and sacrifice stopped working – they ran out of water – the nobility fled and the people deserted the cities to live in small villages scattered throughout the jungles where they continue to live today doing subsistence farming.

Had they realized their interdependence and utilized their observational excellence and ability to convert what they saw into science and applied it to issues like water they might not have suffered the sad fate which befell them. That’s a lesson learned and a question which has to be raised is how is it different today in many parts of the world? – as an example of the need for collaboration – water management requires collaboration amongst states. Unfortunately if history repeats itself we’re going to relearn this lesson instead of applying it. Looking to ritual, blood lust, and murderous combinations of religion and politics is something we just can’t seem to get over despite all of the science and bodies of knowledge we continue to develop - just one example of the human condition? Empires come and go but a question which continues to be unanswered is what happens to the Descendants – are they prepared to carry on? If you are interested we created a video on this subject which is available on my Facebook page. In the meantime Happy 2012!