Perplexed by the slow uptake of mediation in many places, is it time to wonder whether the mediation field has taken sufficient account of the centrality of culture? Do we typically train and promote a Western, one-size-fits-all mediation model? Should we educate ourselves to be more culture-wise and flexible? And if we did, would that increase the uptake of mediation around the world?
In Shakespeare’s The Merchant of Venice, Shylock says:
If you prick us, do we not bleed? If you tickle us, do we not laugh? If you poison us, do we not die?William Shakespeare, The Merchant of Venice, Act III, Sc I
This plea for our underlying humanity is striking; but the ways human societies react to the same behaviour can be very different and one key factor is culture, as the Covid-19 pandemic has revealed.
In more collectivist cultures, the lockdown was promoted and, for the most part, tolerated as being for the common good. In more individualist societies, that rhetoric was often less evident, and when social distancing was mandated or recommended, more individuals protested their loss of autonomy and civil rights. Social distancing was taken for granted as desirable and possible in certain countries; in other places, alternative measures had to be found because remaining distant from others was culturally unrealistic. The cultural fissures between what was workable and what was not were exposed for all to see.
Mediation as a cultural phenomenon
Although mediation has its roots in Confucian philosophy, modern mediation is essentially based upon Western values and practices. In embracing mediation as an ideal tool for the resolution of disputes of all kinds, it is entirely possible that modern mediators, usually drawn from the ranks of the educated, privileged and socially advantaged, have found it challenging to adapt the very models they use.
In his book We Must Talk Because We Can 3, David W. Plant warned: “We have to start by defining the process as part of the problem”. When it comes to resolving disputes, not only between cultures, but also within them, we have not succeeded in applying that wisdom. The reasons are not difficult to locate.
We have not sufficiently scrutinised models of mediation; we have not rigorously subjected them to a cultural critique; we have not questioned whether they were designed to suit the societies in which they originated but less applicable in others.
Instead, we have simply assumed that mediation is culture-blind and has universal application. The field has hardly stopped to wonder if, indeed, it may not be so. In our enthusiastic embrace of mediation, have we have failed to seek and listen to feedback from users?
Participants in a Hong Kong construction mediation workshop once greeted the idea of mediator neutrality or impartiality with derision. However well the mediators behaved, they said, the very fact that they were largely from the same social group as developers, would render them partial or biased in the eyes of injured workers. So, class raises its head, along with culture and, as other authors have notably asserted4, gender.
How can mediators overcome such unspoken perceptions? How should they behave? What should they do differently?
It is precisely these questions that were addressed by the IMI criteria for accreditation as an intercultural mediator5. Designed to ensure mediators working across cultures have the requisite knowledge, skills, sensitivities and approaches, the criteria are offered as a basis for the development of cross- and inter-cultural mediator training programs. It is worth noting that the criteria do not recommend any particular mediation model, and still less so, that one model is more cross- or inter-culturally viable. That is left to the value judgement in the country in which the training is offered, and it is implicit in the criteria that those models may vary widely. The question for mediation service providers and for mediators active in different cultures is do our models differ, and have cultural factors been taken into account in their design and implementation?
Removing mediation’s cultural blindfold
There are now two live issues squarely before mediators and providers if mediation is to achieve all it can in the decade ahead:
- whether the models of mediation are a good fit with the cultures in which they are deployed; and
- whether the behaviours of mediators are well adapted to the cultural setting and parties’ expectations.
We are fond of saying that cultural and legal norms differ, so a third issue is:
- what are we doing to take account of those differences?
To promote mediation and their training programs, many organisations have imported prominent mediator-trainers from other countries. Has this had the unintended effect of spreading the notion that this is the best/correct/ideal model and approach, the one that will make a trainee a successful mediator?
In imposing Western mediation models and, for instance, certain notions of how best to demonstrate neutrality and impartiality, how and when to intervene, what communication techniques to use and why, whether to caucus or not, the very acceptance of mediation may have unwittingly been hampered. Most mediators have met parties who have emerged from a mediation in which they nominally settled but who vow they will never mediate again. Mediators can be quick to dismiss their responses with the typical Western summation: “They got a deal, didn’t they?”
When asked why they are not satisfied, parties often point to practices and processes they felt were at best inappropriate, at worst offensive. If we are serious about the promotion of mediation, there will be a need to collect such responses regularly and analyse them in the light of culture.
If, for instance, resolving a dispute is as much about rebuilding or sustaining relationships as getting a deal, then the way the deal is done can matter as much as the outcome. The journey can be as important as the destination. The relationship between process and outcome is worth studying in the decade ahead and may well reveal previously unanticipated sources of success and satisfaction.
From the standpoint of the mediator’s own culture, “they got a deal” means things are fine. Unless mediators seek and take account of feedback, they may never know that they unwittingly jeopardised relationships between parties by encouraging open discussion of issues which, in a given cultural setting, was unwise to broach.
Are mediators culture-blind, or are the processes we use? Or both? To ensure mediation gains traction worldwide, we have to stop implicitly dictating that certain models are the Holy Grail and accept that in, as well as between, different cultures, mediation will look, feel and need to be practised differently.
Above all, mediators need to be trained how to mediate flexibly, sensitively and in ways that are culture-wise.
[i] Joanna Kalowski is a mediator, facilitator and judicial educator. For over thirty years, Joanna has led mediation workshops in Australia, Europe and Asia, and in 2014, co-chaired the International Mediation Institute’s committee which designed the criteria for IMI intercultural mediator accreditation. In her native Australia, Jo has been a member of the Federal Administrative Appeals Tribunal and of the National Native Title Tribunal, mediating claims by Indigenous Australians to their traditional lands and waters. In 2017, 2018 and 2019, Joanna was listed among the Who’s Who Legal list of eminent Australian mediators. www.jok.com.au
3 David W. Plant: We must talk because we can, 2008
4 cf Alicia Kuin: Actively Support UN Resolution 1325 on Women, Peace and Security
Originally published via Mediate.com on June 19 2020. Republished with permission.