Co-Facilitation and Team Facilitation : Core Skills for Leading Restorative Justice and Circle Processes to Expand Our Range of Peacemaking Skills in Indigenous and Multicultural Settings. Bruce E. Barnes, Univ. Hawaii 2/4/12 Abstract: A basic skill set for restorative justice, circle practitioners, and peacemakers working in or with multicultural or aboriginal cultural communities is facilitation. This article explores a variety of co-facilitation applications, and practitioner experience in Australia, Canada, and the US. Ways to incorporate mediation and facilitation in process design are discussed. Other countries throughout the world who may be interested in multicultural facilitation may find these ideas useful or possibly adaptable, to similar multicultural conflict settings.

Many of us in the Asia-Pacific region and North America have followed with interest the rapid evolution of restorative justice, conferencing and circles over the last few decades. Canada, the US, New Zealand and Australia all appear to have been launching pads for many varieties of family group conferencing, circle sentencing, victim offender mediation and other local practices that were nurtured and grew in a variety of settings, both rural and urban. A 1996 book set out a representative range of programs at that time, not only in the 4 countries named but also the UK, Japan and Germany. (Galaway and Hudson, 1996). Who Leads the Process? I became interested in the moving parts of the processes used by the leaders of these processes in each region of the world, as the different “branches” of RJ and circle processes evolved. When I facilitated my first family group conferences here in Hawai’i, I began to wonder: Is there a preferred background of those selected to lead, facilitate or mediate in each of these processes? Could they be everyday community people, police, other government officials, social workers, academics? Who exactly were they and what qualified them to lead in the eyes of their communities? Secondly, from our perspective based mostly on our own experiences in Hawai’i and the Asian Pacific, should these multicultural dispute resolution processes utilize a single mediator/ single facilitator models, or instead should they be more suitable for co-mediation, co-facilitation, or a team facilitation processes?

1

There are underlying reasons for my focus on these two aspects of this emerging field: 1) Many of the restorative justice and circle-based processes involved indigenous communities: First Nations in Canada, Native Americans in the US, Maori in New Zealand and Aboriginal people in Australia. There was a profound cultural difference between the settlers in each country (primarily European in ethnic heritage) with a strong theme of individualism in those mainstream/dominant cultures of these countries contrasting sharply with the strongly collectivist nature of the indigenous cultures. The conflicts between these two cultures are described in “Building Conflict Resolution Infrastructure in the Central and South Pacific: Indigenous Populations and Their Conflicts with Governments” (Barnes 2002). The detailed research basis for the differentiation of individualist and collectivist themes within 70+ national cultures of the global human populations was developed in (Hofstede. G., Hofstede G.J, Minkov, M. 2010). 2) Single mediator/facilitator vs. comediators/co-facilitators As one of the initial national pilot mediation programs in the US, the mediation centers in Hawai’i did early research studies on single-mediator models of divorce mediations versus co-mediators (male and female mediation pairs). Our research showed that the mediated agreements using co-mediators were upheld more often and were more durable than those mediated by single male or female mediators. Building on that knowledge, our Hawai’i Model of mediation was built around comediation as a foundational practice for the wide variety of cases we mediated. This co-mediation model has continued to be used regularly and successfully for over 30 years in the Hawai’i mediation centers, particularly in family mediations involving male and female disputants. Types of facilitators: As various models of restorative justice evolved, it became commonplace to identify the leaders as “facilitators.” However, the type of people that were utilized as facilitators were quite diverse. 2

Here are a few examples from my 1999 research and article: (Barnes 1999) PROCESS

TYPE of FACILITATOR

* Family Conferencing (New Zealand)

* Social Worker from Government - usually pakeha-(Caucasian)

* Wagga Wagga, Australia Juvenile offenders conferences

* Police Officers

* ‘Ohana (family) group conferencing in Hawai’i

* Trained community facilitators with involvement of social workers.

* Circle Sentencing – Adult First Nations Offenders (Canada)

* Judges with community facilitators from First Nations

* Schools- Student Offenders Conference (Australia)

* Trained “Real Justice” Facilitators

Now we will discuss one of the few documented multiparty facilitations that deliberately planned for and prepared for designing a process for two large groups with a history of cultural misunderstandings. Indigenous/governmental facilitation: (Federal/Tribal Facilitation in the U.S.A.) As we have discussed, cultural appropriateness becomes a crucial factor in conflicts between indigenous peoples in colonized nations and the governments of those countries. Often these conflicts have festered for decades with no breakthroughs in process or in trust between the parties that have attempted to negotiate between these two worlds. A successful example of a “hybrid” facilitation process was conducted in 1975 by a multicultural team that did its homework on Native American culture and conflict resolution techniques. This successful example of facilitation between Native American Tribal leaders and the U.S. Federal Government was conducted by the Federal Mediation and Conciliation Service (FMCS).

3

Four FMCS co-facilitators successfully completed a regulatory negotiation process with 48 Indian tribes and over 10 different federal agencies. (Sunoo and Faulkner 1998). The U.S. federal government was experiencing difficulty in developing regulations to implement 638 “contracts” (i.e. the statutory vehicles enacted as Public Law 93-638 in 1975 giving Indian tribes the authority to contract with the Federal Government to operate federal programs such as schools, health facilities, construction projects, etc. serving their tribal members and other eligible persons). After six years of efforts, the federal government was unable to gain sufficient cooperation of the tribes in creating the implementing regulations. In 1994, the tribes reacted quite negatively to attempts to publish the proposed regulations. Since the tribes had been excluded from the decision-making, Congress then required the department to “develop any regulations jointly and with active participation of Indian tribes under the guidance of the Negotiated Rulemaking Act of 1990.” Despite misgivings on both sides fueled by twenty years of failed negotiations as perceived by the Indian side and the bureaucratic inertia and history of the ten involved federal agencies, the facilitation process commenced in 1995 and was completed in only twenty months. Much of this success was credited to the delineation of “cultural sensitivity guidelines” provide by Dr. Diane LeResche, an Athabaskan ….. for example, the importance of spirituality was honored, prayers began each day and a closing prayer at the end of negotiations, and the parties were prepared to be comfortable with periods of silence. The outcomes of those twenty months of facilitated meetings were as follows: the largest negotiated rule-making up to the conclusion (1996). full consensus on all decisions creation of a model of future dialogues with the tribes both tribal and federal agency representatives using the regulations were satisfied with the clarity and usefulness of the documents.

4

Facilitated negotiations accomplished in twenty months what the tribes and federal governments had been unable to accomplish in the previous twenty years. (Sunoo, J. & Faulkner, J. 1998) These types of conflicts have deep roots in the historical events surrounding the colonization of the affected countries. Another example might be a current major conflict existing between the Indian Residential School Survivors and the Canadian Government, with similar challenges (similar to the FMCS group in the preceding paragraph) facing those who are trying to fashion remedies. (FunkUnrau and Snyder 2007). I discussed a model of multicultural co-facilitation for large conflicts involving governments and indigenous Pacific Islanders in my article “Conflict Resolution Across Cultures: a Hawai’i Perspective and a Pacific Mediation Model.” (Barnes 1994) In that article I coined the term “Pacific Model Facilitation” for creating a type of a team approach to facilitation, incorporating the in-depth knowledge of both or all cultures relevant to the conflict by selecting facilitation team members from both cultures represented by the disputants. Ironically, around the time of this article being written, a huge historic conflict was going on in Hawaii. “Pacific Model Facilitation” was probably not even considered for application in the largest military/Hawaiian land-use conflict in Hawai’i’s history. The conflict was over ownership and control of the island of Kaho’olawe, which resulted in the deaths of 2 popular leaders of the movement to regain Hawaiian control of the island. The island was being used for bombing practice by the US Navy at that time. Eventually, over the course of a long struggle Hawaiians (Kanaka Maoli) regained control of the historically important island

marking the first time in

history that the US government Dept. of Defense has ever given back land to indigenous groups that was take from them. As one might imagine, conflicts over land, ownership and rights of access to various key portions of the land, and abuses of land are extremely important in cultures where the land itself is sacred and must be nurtured. In modern times where land is an exceptionally valuable commodity, such as in island nations

5

throughout the Pacific, and with rapidly growing populations in all island states, land conflicts can seem to be never-ending. After another 15 years of relative silence in conflict literature on the issue of co-facilitation, I was delighted to recently receive from my Australian friends a copy of their book as a gift: “Resolving Indigenous Disputes: Land Conflict and Beyond” (Behrendt and Kelly 2008). Therein co-author Loretta Kelly, who is of the Gumbaynggir people (original inhabitants of what is now called New South Wales) described her interviews of 16 native (land) title claimants. One question she asked in the interviews was “do you think having an Aboriginal mediator would have improved your experience with native title mediation”? One claimant answered as follows: … (yes) …. “Only because the white ones haven’t worked. But why not a black and a white mediator together?? That way the blackfellas and the whitefellas don’t think that the mediators take one side.” Kelly noted that this idea was a “common thought raised independently by many of the interviewed claimants – it was not an idea imported by Kelly into their interviews. Yet it seems that the concept of bi-cultural co-mediation or inter-cultural co-facilitation is one that has been overlooked by policy makers, or its importance minimized, where disputants are from different cultural backgrounds. Kelly has tested this inter-cultural co-facilitation model in over 100 separate disputes where she was a facilitator or a mediator. Essentially, it involves an Aboriginal facilitator and a non-Aboriginal facilitator working as a team to assist the parties in resolving native title conflicts. Importantly, if the parties are both genders then one facilitator should be male, and one female to insure that potential gender inequalities are reduced. In Australian aboriginal cultures, there is “secret men’s business” that only men can discuss, and “secret women’s business,” that only women will discuss….. Thus, the gender of the facilitators is often equally important. Kelly notes that where the land title conflicts involve a large number of disputants, there may be a facilitation team. Even though Kelly has been a mediator for over 10 years, it was only in the past few years that she recognized that the process she usually adopts in dispute resolution could be

6

described more accurately as facilitation rather than mediation. Not only does facilitation imply more flexibility in the process, it also is preferred by many native indigenous practitioners as well as native participants. Kelly gives two reasons for their preferring facilitation: “Bad experiences. An aboriginal disputant may have been involved in a previous unsatisfactory mediation, or heard from friends or relatives about their mediations, where the (usually non-aboriginal) mediator adopted a narrow, pre-conceived, or ‘white’ approach to the process. *

Cultural understanding. In Aboriginal communities that have had little or no exposure to Western mediation, there is a perception that a mediator will if the parties are unable to reach agreement

proceed to act as an

arbitrator of the dispute. The rest of chapter 7 in Behrendt and Kelly’s book, the chapter titled “Preferred model for intercultural dispute resolution” describes in more detail how to train the non-aboriginal facilitators to be sensitive to aboriginal protocols and nonverbal behavior, and when they should defer to the aboriginal co-facilitator. They also describe how they have worked out the “intake” processes and how they designate “facilitator one” (the lead facilitator) between the partners, and how the protocols of the co-facilitation work out depending on various different groups involved in the facilitations. I might add also add (FYI-any Alaskan readers)

that Dr. Diane LeResche,

mentioned earlier as the consultant on the FMCS/US Native Tribes “Reg Neg” case, is originally Athabascan from Alaska, but has spent many years working with Native American groups in the US. She was the first editor of a whole issue of “Mediation Quarterly” (LeResche 1993) devoted solely to Native American conflict resolution articles, and was also the very first PhD in Conflict Resolution to graduate from the George Mason University Program. (Diane) has shared with me in conversations that her impression is that the Native groups she works with in the US also prefer the term “Facilitation” over the term “Mediation” possibly for similar reasons as those expressed by Aboriginal

7

Australians. She herself prefers “facilitation” to mediation.

[ Author’s closing comment: Larissa Behrendt and Loretta Kelly are a very talented team as well as individually, in many ways. Larissa wrote the first book ever devoted completely to aboriginal dispute resolution in Australia, and responding to her inner novelist a few years back wrote the first critically acclaimed novel by an aboriginal writer: “HOME”. She is also the first person I ever met in my life with a J.S.D from Harvard (Doctor of Jurisprudence)!!! Quite a pair.

***********************************************

References: Barnes, Bruce E. Building Conflict Resolution Infrastructure in the Central and South Pacific: Indigenous Populations and Their Conflicts with Governments. Conflict Resolution Quarterly 2002, 19, 345-361. Barnes, Bruce E. Pacific Model Facilitation and Conferencing: Powerful Tools for Preventing and Managing Ethnic Conflict: SIETAR International Journal, 1999, 1, (2) Barnes, Bruce E. Conflict Across Cultures; A Hawai’i Perspective and a Pacific Mediation Model. Mediation Quarterly. 1994, 12, (2) 117-133. Behrendt, L. and Kelly, L. Resolving Indigenous Disputes: Land Conflict and Beyond. Sydney, NSW: The Federation Press 2008.

8

Funk-Unrau, N. and Snyder, A. Indian Residential School Survivors and StateDesigned ADR: A Strategy for Co-Optation? Mediation Quarterly. 2007, 24, 3, 285-305. Galaway, B. and Hudson, J. Restorative Justice: International Perspectives, Monsey, N.Y,: Criminal Justice Press, 1996. Hofstede, G., Hofstede, G.J., Minkov, M. Cultures & Organizations: Software of the Mind 3rd Ed. 2010. Columbus, OH. McGraw-Hill. LeResche, D. Native American Perspectives on Peacemaking. Special Issue of Mediation Quarterly 1993. (10) 4. Sunoo, Jan J. & Faulkner, Juliette. 1998. Indian Self-Determination: Regulatory Negotiations: the Native American Experience. Unpublished Manuscript. May be available through US Federal Mediation Service??

9