Saturday, September 23, 2006

Mediation & Police: “So we understood them and they understood us.”

In keeping with the East Coast/West Coast theme this week, I have pasted below the full text from a great article in The New York Times this week which highlights one aspect of mediation that sets it apart from other ADR methods and from traditional litigation.

In mediation, the parties are given the opportunity to "clear the air" - to really be heard and to truly listen to the other parties, and sometimes even to apologize. With the help of the mediator, parties are able to better understand where everyone is coming from and to gain a fresh perspective on their own actions and start to figure out what can be done to repair what might have gone wrong. Clearing the air or "venting" in this safe and confidential setting can be therapeutic for some, a relief for others, and usually an eye-opener for the listeners. But for everyone, this clearing of the air helps the mediation process progress to the next stages of negotiation and resolution. Here is the article:
Settling Disputes Across a Table When Officer and Citizen Clash
(Picture caption: Suzanne DeChillo/The New York Times
Officers Leon Guzman, left, and Jack Ng accepted mediation of a complaint that they waved their pistols in questioning suspects in an office. )
Published: September 20, 2006
In 1993, at a time when New York City was racked with police scandals, a new city law created the Civilian Complaint Review Board so that accusations against police officers could be handled by an independent agency. Cases would be investigated and then sent to the full board, which would recommend punishment when wrongdoing was found.
Buried deep in the law was an unusual option for the accused and the accusers. It called for mediation, a clearing of the air in which both parties would meet face-to-face in a room with a mediator but without lawyers, to explain themselves and, sometimes, vent their anger. If mediation worked, the case would be closed, the allegation erased.
At first, this option was rarely used — just 14 cases were mediated in 1998, for example — but it has become considerably more common in recent years, especially since Police Commissioner Raymond W. Kelly clarified some departmental controls on the process in 2004, making it far more palatable to officers.
Mediated cases jumped to a high of 113 in 2004, and this year they are on track to go even higher. Through the end of August, 92 of the 5,144 complaints received had been mediated. The percentage is small, but mediated cases take about half as long to send to the board (115 days, on average) as investigated cases (223 days), officials said.
Mediation sessions are closed and the discussions are confidential, but board and police officials recently allowed The New York Times to talk with the participants after a mediation session. What emerged was a glimpse of an unfiltered approach to resolving seemingly intractable disagreements that is not nearly as touchy-feely as it sounds. Sometimes, assumptions and anger can drop away quickly when accuser meets the accused.
Since it is the accused and not the accuser who is wearing a blue police uniform, the approach can seem almost upside down. Some experts call mediation a bad deal for officers, and although many officers are certainly skeptical or dismissive of the process, some who participated said they were surprised by how much they got from it. The officers said they relished the opportunity to explain why they do their jobs the way they do. At the same time, their accusers said that although mediation failed to wipe away their anger completely, it certainly gave them new insights.
“I told them even if it was the White House, we would have done the same thing, so they understand we are doing our job and they wanted to be heard,” Officer Jack Ng, accused of waving his weapon while subduing a suspect, said of the two men who filed a complaint against him and his partner. “So we understood them and they understood us.”
Mediation is not available for the most serious allegations of abuse. In fact, Christopher Dunn, of the New York Civil Liberties Union, said that “because mediation stops the investigation and guarantees there will be no discipline, it should be used in only the narrowest of circumstances involving the most minor of offenses.”
In cases that do come to mediation, the two sides sit across a table in a private space to talk about what led to the complaint. It is a no-holds-barred encounter that can turn emotional; participants scream, curse or cry. Mediators are neutral, not judges, and both sides are protected: An apology from an officer cannot be used in a lawsuit, and an admission by a civilian is not grounds for arrest.
The program is voluntary for both sides. Complaints against officers are not automatically withdrawn if an officer goes to mediation. If either side is unhappy with mediation, then the case could go back to a traditional investigation or end as “mediation attempted.” That happens very rarely, officials said. Instead, the case is usually listed as mediated and both sides sign a “resolution agreement.”
Officer Ng’s experience was cited by both sides as an example of a successful mediation.
He and his partner, Leon Guzman, got a radio call on Oct. 3, 2005: a man with a gun on Grand and Allen Streets. They happened to be on that corner, and they saw two men fitting the description. They left their patrol car, and drew their guns; the men separated, the officers chased them, stopped them, frisked them and eventually let them go.
Mark Gerse and Sam Orlando watched the episode, and their account differed from the officers’. Mr. Gerse and Mr. Orlando were at work in the Lower East Side Harm Reduction Center, a needle exchange office at 25 Allen Street, and to them the officers appeared overzealous.
"These guys came in like it was the Wild West,” said Mr. Gerse, the center’s deputy executive director. “They came in with guns drawn, ready to shoot it up. Anything could have happened; guns could have gone off. That was our basic complaint.”
Mr. Gerse and Mr. Orlando, the center’s health care coordinator, filed their complaint 44 minutes after the episode. Later, the two sides agreed to mediate. They did so on May 16. It took roughly an hour.
It was the first civilian complaint for Officers Ng and Guzman, who work in Transit District 4. Officer Ng, 30, feared that the men would demand an apology. Officer Guzman, 37, said he thought the mediation would end in disagreement. “I thought there might be a little hollering,” he said.
Mr. Gerse and Mr. Orlando were also nervous.
“I thought it was going to turn into a shouting match,” said Mr. Orlando, 46. Mr. Gerse, 50, said, “I was uncomfortable.” He added: “It’s very uncomfortable to be with cops.”
But the perceptions of all four were different afterward.
“I really got to look at police officers in a total new light of respect and where they are coming from,” Mr. Orlando said. “Obviously, these are two highly trained police officers who knew what they were doing and are capable of handling their weapons.”
Officer Guzman said, “We got to say our side of the story, and they seemed to understand. We did everything positively.”
Interestingly, neither side was swayed in its account of what happened. Mr. Gerse and Mr. Orlando say both officers entered their needle exchange office, but the officers said it was only Officer Ng who went inside. Mr. Gerse and Mr. Orlando say the officers had their guns drawn, which could have threatened clients who believe they are in a safe place and might be discouraged from coming back.
The officers say that Officer Ng entered to chase a suspect, and that Officer Guzman stayed outside on the street with the second suspect.
“My perspective was that they went too quick, they jumped too quickly,” Mr. Gerse said. “The bottom line is they just said they would do better and we said we would do better, and we both agreed that our resolve to work together in the future is a good thing.”
When asked, Officer Guzman said he had not discussed his mediation experience with his colleagues. Interviews with other officers indicated a deeper skepticism. Just because they go along with mediation, several said, it doesn’t mean they believe in it.
“They’ll give it a try,” a veteran officer said of his colleagues. “The path of least resistance is what a lot of guys will take. They don’t want to get in trouble; they don’t want to have a bad record. They’re probably intimidated by the system and feel they won’t get a fair shake. So this is a way out.”
As one police supervisor put it, “The feeling is, it’s the least of all evils.”
“In the ideal situation, both parties can understand their actions and reactions,” said Charles M. Greinsky, a former member of the Civilian Complaint Review Board who helped start the program. “They can march back into their respective worlds with a better understanding of the other’s perspective.”
That is not so when cases are investigated, when the two sides cannot exchange information, “so a misunderstanding may remain,” said Florence L. Finkle, the board’s executive director.
The confidentiality agreement that both sides sign shields mediators and participants from being called to testify in any legal proceedings that may come of the dispute. No tape recording is made; any notes are destroyed; lawyers must wait outside the mediation room at the board’s headquarters at 40 Rector Street.
Mr. Dunn, of the civil liberties group, said the case involving Officers Ng and Guzman should never have made it to mediation. “For the safety of the public and the integrity of the C.C.R.B., these kinds of cases must be fully investigated,” he said.
And Maria Haberfeld, the chairwoman of the department of law and police science at John Jay College of Criminal Justice, said she believed mediation could only hurt police officers, especially if their actions were within departmental guidelines.
Much of what occurs in police work is outside the view of most civilians, she said, so the public sees a slice of a situation and often makes inaccurate judgments. The sides are inherently unbalanced: one has power to use force in society, the other does not.
By entering mediation, officers are surrendering some authority; the process itself can be the punishment, Dr. Haberfeld said. “The connotation is, you have already indicted the officer,” she said. “You are already coming from the perspective of the officer doing something wrong.”
The board has 30 to 40 mediators available. Half are lawyers and the rest come from fields like human resources and social work. Mediators are required to complete a 40-hour state training course in mediation theory, as well as follow-up practical training by the state. Before joining the board program, they must have two or three years’ experience mediating, and undergo two one-day training courses, one at the board and the other at the Police Department, said Andrew Case, a spokesman for the board. He said refresher training courses are also given.
Ms. Finkle said it is decided that a complaint case may best be resolved with mediation rather than investigation, roughly 75 percent of city officers accept it, though more than half of the civilians reject it.
Governments in other states, and other nations, are calling to ask questions about how to adapt the program. Officials from Oregon and Michigan, for instance, as well as from London, Bolivia, Uzbekistan and Russia have expressed interest.
Commissioner Kelly said he hoped the trend toward more mediation continued.
“I like the concept of mediation,” he said. “I think it’s win-win for both the public and for police officers who receive complaints. It gives everyone an opportunity to express their position.”

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