Why must a mediator consider cultural aspects in a dispute?
I believe it is never possible to run a successful mediation, or any other interactive process with a culturally diverse client/s, without being ‘culturally aware’. What does this awareness mean in practice? How is it demonstrated? What does one do with it in a critical moment of a mediation process?
In my own professional, as well as lived, experience, I have observed an interesting pattern: that a party from a so called ‘mainstream’ or ‘majority’ culture often expects the ‘minority’ or ‘diverse culture’ party to be aware of ‘their own difference/s’. As if they are not!
For example, my experience of predominantly ‘mainstream culture’ working environments - such as public service - is that a person from a non-English speaking background (these days also called CALD, i.e. a Culturally and Linguistically Diverse person) is fairly quickly upon their appointment to a position sent to some form of ‘Cultural Awareness Training’. It is part of their introduction (or is it induction? or indeed an initiation?), to the ‘office culture’. To learn early on about ‘how we do things around here’ and what ‘office values’ are. So a new ‘CALD’ kid on the block knows right form the start what is a proper and appropriate conduct towards her or his colleagues, what is acceptable, what will run them into trouble. The ‘we told you so’ approach.
Such approach has always been puzzling for me: isn’t it those who have not been, or have to a limited extent been exposed to different cultures, that need to be educated? Doesn’t mediation practice, whose roots are in the Western Culture, need to include elements of cross-cultural training and be cognisant of these essential aspects that form a basis of human relationships?
There are various issues that could be explored - and exposed - in such settings, and there is mounting research providing strong and scientific base for any lay-persons’ subjective observations. Mediation is not immune from stereotyping and generalisation, and to ensure there is objective, scientifically supported theory and knowledge about cultural aspects in mediation processes, there is an emergence of powerful academic writings about the importance of cultural awareness in a mediation setting. Australia’s own Dr Lola Akin-Ojelabi, Associate Professor at La Trobe Law School, in her 2020 article Dignity and Culture in Dispute Resolution writes: “We need to pay attention to cultural difference in dispute resolution not because it is, in itself, a problem, but because cultural difference may hold the key to unlocking underlying issues in any dispute. The dispute may not be about the fence, or the noise, or whatever substantive issues the parties may be disputing over; the dispute may be easy to resolve on the facts, but parties may remain adamant or fail to problem-solve because of cultural difference. In addition, the dispute resolution process may not resolve the dispute because of transplantation issues, and resolution may not address the real issues in the dispute, paving way for future disputes. Cultural differences make conflicts intractable because the discourse is most often negative and laden with prejudice, stereotypes and ethnocentrism in relation to cultural identity." https://griffithlawjournal.org/index.php/gjlhd/article/viewFile/1189/1051).
Dr Akin-Ojelabi, in her own words, “argues that DR processes involving cultural issues require application of the dignity principle. Conceptions of human dignity include autonomy, respect, recognition and substantive dignity but given the way cultural issues may arise in DR [dispute resolution], dignity as respect and recognition are more important in enhancing parties’ voice quality. In addition, DR Processes ought to pay attention, not only to procedural justice elements, but also to the quality of outcomes.”
These are important aspects of any dispute a mediator must be aware of before she or he walks into the mediation room.
Keep smiling
Vesna
