My interest in this topic stems from events that occurred roughly a decade ago when I was volunteering in the Victim - Offender Reconciliation Program of a Community Mediation Center. At the time the belief that conflict resolution transcended culture was remarkably prevalent. As was usual at the time, I had been trained in a particular process model without any provision for, or discussion of, cultural issues. There was a proper way to mediate, I was taught, and this entailed following a unilinear staged model with specific ground rules.
In one of the cases I was assigned to, my co-mediator and the two disputants were African-Americans. My partner was considerably senior to me in both age and experience and naturally took control of the session. Over the course of the mediation, he broke many of the rules that I had been taught were integral to the process. This caused me great consternation; however, I noticed that the two disputants responded well to his approach, and I did not intervene.
Upon further reflection, I realized that what occurred might have been, in fact, related to cultural differences. Reading Thomas Kochman’s Black and White Styles in Conflict greatly reinforced that conclusion.1 Kochman did not specifically apply his findings to the mediation process. However, there were many parallels between Kochman’s description of the discursive preferences of White Americans and the conventions of court-annex mediation programs. In addition, the areas where my co-mediator diverged from what I had been taught was the correct approach dovetailed with Kochman’s presentation of the Black conflict style.
In my experience mediators are required to be impartial facilitators who help create an opportunity for productive communication and problem solving. They are expected to allow the disputants to shape the content of the discussions, but they control the process as expressed in the reading of ground rules at the session beginning, for example. Among other things, the ground rules stipulate that in mediations people must take turns speaking and do not interrupt one another. Mediators are expected to keep the disputants focused on “the issues” and to prevent them from personalizing the discourse. The goal is a discussion and not a debate. The mediators are facilitators who channel the communication and keep the discourse focused on reasoned problem-solving, by, for example, preventing the disputants from speaking directly to each other and starting to argue or become emotional.
As Kochman underlines, many White Americans idealize a dispassionate and logical mode of debating and problem-solving. In mediation this is expressed in maxims such as “separate the people from the problem” and the use of caucuses to cool down emotions.2 Black Americans, Kochman argues, tend toward a much more affective and emotive style of communication — a style that is largely proscribed by the ground rules.
Consider, for example, the rule that each disputant should be able to speak, without interruption, until satisfied. The mediator directing the communication corresponds with the White belief that turn-taking should be authorized from an outside authority rather than shaped by the ideas, passion, and messages that come up during the discussion. Some African-Americans are accustomed to a different mode of communication in which there is a rapid and direct exchange of information3 and may be at a disadvantage when they are not permitted to communicate in that fashion; “Blacks call this constraining mode of behavior fronting, and they generally regard negatively situations in which it is necessary to front… All blacks consider fronting to be a strain.”4
The emphasis on uncovering all the relevant information in a dispute can also lead to misunderstanding. Some mediators are taught to probe for information and ask questions to make sure that no underlying issues or important details are left unmentioned in order that an agreement that addressed all facets of the dispute can be formulated. According to Kochman, Blacks are particularly sensitive to probing questions, due in part to the history of structural violence in America. This is especially true when the interlocutor is someone associated with the power structure (a category that can easily be extended to mediators in court-annex programs).
The issue of mediator neutrality, a central tenet of North American mediation, is another potential problem. Because many African-Americans approach communication by taking stances on issues, they may have problems believing in the impartiality of mediators. As Kochman puts it, “Because blacks admit they deal from a point of view, they are disinclined to believe whites who claim not to have a point of view.”5
Sociolinguistics has illustrated how languages emanate from different social systems (see, for example, Bonvillian 1993). Scholars such as William Labov and Evelyn Dandy have shown how African American modalities of communication constitute a viable sociolinguistic system that is governed by rules.6 By applying Kochman’s work to mediation we see that widespread themes in the structuring of institutionalized mediation impose a modality of communication that emanates from the milieu of American middle and upper class Whites.
The disarticulation with norms, values, and behavioral patterns of other populations may lessen the effectiveness of mediation as a tool for conflict mitigation. It also raises ethical questions (especially when mediation is linked to the legal system) and concerns of cultural imperialism when Western techniques are exported overseas. The implications of these issues are relevant both at home and abroad.7 The following section provides a critical overview of how practitioners have tried to deal with cultural diversity with reference to the Gambian findings about cultural perspectives.
Searching for Multiculturalism in Mediation
The issue of multiculturalism in mediation has come under much greater scrutiny since my training in 1994 and various proposals have been put forth to address it. These include adjusting the communication framework to make it amenable to other communication styles, following checklists of cross-cultural mediation techniques, matching ethnicities, and elicitive praxis. These efforts have been helpful, but they are themselves rooted in culturally specific cosmologies and do not fully engage the complexity of culture or the profundity of its effects.
Kochman’s work and that of communication specialists have contributed to a strong focus on differing communication styles as the crux of societal variation. There have been numerous studies of the negotiating and communicating styles of different groups.8 One common response to multiculturalism in mediation has been to attempt to adjust the way that communications are structured to make the process more accessible to non-Western populations. For instance, scholars have noted that members of high-context cultures are often uncomfortable with direct confrontation and would prefer mediations with more caucusing rather than direct negotiations.9 In this view, the general principles of mediation are applicable cross-culturally (see, for example, Myers and Filner 1997). Mediators should be sensitive to different styles of communication and values and should follow certain rules when dealing with different cultures, but the fundaments of the process can remain in place.
However, cognitive structures influence mediation in a profound way that goes far beyond shared preferences for interaction or behavioral standards. In a two-year study of mediation among rural villagers in The Gambia, I found stark contrasts to popular American beliefs regarding disputing and peacemaking. Widely held precepts encapsulated in mainstream ADR, such as the need for a win-win agreement that satisfies the essential interests of both parties, did not resonate in The Gambia. Many Gambians did not conceptualize conflict as a matter of incompatible goals or specific issues existing between two or discrete individuals. In the U.S. mediation is often considered facilitated negotiation, but Gambians frequently focused more on reconciliation than on bargaining or working out the issues. The deep incongruities between these views of conflict and corresponding methods of peacemaking makes adjusting mainstream mediation to accommodate other negotiation styles insufficient.10
What many analysts have recommended is that mediation be done by multicultural teams. That is, for example, the proposal of Howard Gadlin, a scholar who critiqued Kochman’s conclusions as overly broad.11 Due to budgetary and other constraints, most programs rely on teams of two mediators. Those concerned with cultural sensitivity often strive to match disputants with a mediator of similar ethnic background. However, several studies have critiqued matching. Viswanathan and Ptak analyzed the matching policy of a mediation program in Canada and found it wanting.12 They explicate, for instance, how, among other problems, the policy could be divisive if the disputants assumed that the mediators were representing the party with whom they were ethnically similar. They also cite a case where a Chinese woman specifically requested not to be matched with a Chinese mediator. In a study of 257 mediations at Community Justice Centers in Australia, Fisher and Long found lower rates of agreement in those cases where disputants had been matched with mediators of similar backgrounds than when no attempt at matching was made.13
The Gambian data also underline the potential limitations of matching an African disputant to an African mediator. The study populations (divided by ethnicity, gender, religious identity, and age-group) encompassed a range of views of proper behavior and conflict and the variation occurred both within and across the various sampled groups. The contrast in peacemaking preferences between two ethno-linguistic groups — the Mandinka and the Manjago — was particularly striking. The Manjago, for instance, strongly felt that direct discussions and statements of blame were necessary for conflict cessation, while the Mandinka tended to be fairly confrontation averse and avoided assigning blame when that would contravene shared norms or hamper resolution efforts. The level of difference between members of these groups also correlated strongly with their gender identity. The preceding is but one of many examples that illustrate that cultural differentiation is deep, extensive, and central in conflict transformation.
Disputing and peacemaking cut to the core of shared values and norms, essential components of culture. Although societal differences do not automatically preclude productive conflict resolution, cultural patterning does loom large. In an area so intimately tied to cognitive patterning effective multiculturalism is especially needed, particularly when one places disputing in a historical context and considers the continued rise in potential conflict costs that we have observed in recent times.
Matching mediation participants based on their ethnic identities can potentially be useful, as my aforementioned experience implies. However, it is limited by an overly broad treatment of cultural differences — one that is unfortunately the rule rather than the exception. Much of the work on intercultural mediation has built upon the work of Geert Hofstede (1991) and attempted to measure various dimensions of culture — e.g. collectivism and individualism, time orientation, uncertainty avoidance etc. This very popular paradigm typically contrasts the orientations of members of particular nations in attempting to formulate a strategy for dealing with cultural pluralism (e.g. Goldstein 1999; Ting-Toomey et al. 1991; Triandis 1989).
This approach is hampered by several considerations. Most essentially, the shifting and multifarious nature of cultural perspectives raises doubts about such a “cookbook” methodology (cf. Avruch 1998). Can culture really be boiled down to a set number (the range is most often between 2 and 10 dimensions) of specific factors? Additionally, supposing the existence of a shared culture based on ethnic or other group identities is highly questionable.14 “Culture” is constituted within the cognitive frameworks of individuals where many factors (individual experience, socio-economic status, occupation, gender, religion, etc.) can come into play.15
The many studies that deal with the culture and conflict styles of specific nations are particularly problematic. I found significant variance among Gambians, for example, and I am willing to assert that the members of most nations are likely similarly diverse. Broad treatments of multiculturalism will inevitably lead to disconnects and contradictions. For example, Leeds’ summary of the research on dimensions of culture includes the following finding: “Both Arabs and Latin Americans appreciate a communicative style involving flair, feeling, rhetoric and emotional commitment whereas a controlled, neutral or unexpressive style is more acceptable generally within African and Asian milieus.”16 This strongly contravenes the findings from my study as most Gambians preferred a highly expressive style congruent with Leeds’ description of Arab and Latin American modalities.
Thinking in terms of macro-, meso-, and micro-level components of culture has been helpful in my work. When I viewed the Gambian data as a group and compared them to my experience with American mediation there were obvious differences. In some cases Gambians’ orientations resembled the Black American modalities outlined by Kochman. For example, the differentiation between more expressive and more impersonal (valorized as “rational”) styles of expression and negotiation was applicable. The common distinctions (often presented as dichotomies between Western and non-Western, high and low context, traditional and modern, and so forth) between collectivist and individualist societies do, therefore, have some heuristic value.
However, variance was also present between various groups, with certain populations exhibiting a stronger tendency to employ such affective styles than others. Stratifying the empirical data according to a) ethnicity, b) gender, c) religious identity, and d) age revealed significant patterning in the mediation behavior of various populations. Peacemaking modalities thus varied across and within populations and even at the micro-level.
Considerable intra-group variation also occurred, thereby highlighting the role of individual experience and personality in the behavior of peacemakers. Examining observed and interview data of individual mediators uncovered trends related to these two factors and a variety of related ones such as family dynamics. In my dissertation I compare culture to a djinn — ephemeral beings in the Muslim belief system that are located between the temporal and the metaphysical realms — for while culture can cut to the core of peacemaking, it is also complicated, ethereal, and ever-changing.
Given the multiplicity of culture, crafting a sophisticated, yet cost-effective, method of measuring disputants’ cultural perspectives and providing them with a suitable mediator appears daunting. In addition, matching is another approach that, I believe, is too superficial. The presence of a “cultural interpreter” is not adequate when the salience of core elements of mediation such as negotiation, reconciliation, and problem solving are culture specific.
Another type of technique could be described as awareness building. Some versions seek to move beyond the realm of merely raising awareness about other cultural styles in order to build internal awareness of one’s own cultural orientations. For example, Dana notes that the popular technique of presenting information about cultural differences in conflict resolution modules may allow trainees to learn about other modalities, but it does not give them the tools to address them.17 He proposes “self mediation” as a remedy. Gadlin’s recent work (2003, cited in LeBaron 2003) provides another example. He uses a list of questions to raise the awareness of the mediator of their own preconceptions that inform their praxis. Such awareness is undoubtedly useful, but leaves open the question of how mediators can optimize their practice when dealing with diverse disputants.
More far-reaching attempts to address cultural pluralism have also been proposed. In elicitive approaches disputants are (ideally) given a voice in not only the content of discussions and agreements, but also over the process itself. For our discussion here we will discuss the increasingly well-known transformative model.
The transformative framework is usually associated with three names, Robert Baruch Bush and his partner Joseph Folger and John Paul Lederach. There are some differences between their visions, but they share many common elements. Transformative mediation developed, in part, as a response to critiques of mediation and represents an ambitious effort to counteract problems of power disparities and cross-cultural applicability. Ground rules are eliminated or minimized and, rather than aiming for settlement, the goal is the empowerment of the disputants. Transformative mediators do not rely on a unilinear staged model, instead the disputants are allowed to participate in the shaping of the process.
This last component is, I think, the greatest strength of this approach. Elicitation also sidesteps the conventional orientation toward problem solving — an orientation that is far from devoid of cultural baggage. The emphasis on disputant participation is also inspiring (although that may be due in part to its correlation with Western notions of self-hood and self-determination).
The conceptualization of empowerment is specifically Western, particularly in terms of the targeted social unit and the belief in self-determination. Indeed, in Bush and Folger’s formulation the goal is to empower individuals by enhancing their capacities to make decisions. This reflects a liberal trend of thought traceable to the Enlightenment, one that has been central to Western cosmology, in which the main social unit is individual and the belief in self-determination is crucial.
The elicitive approach also raises concerns about power imbalances influencing mediation. The more determinative power one assigns to disputants, the greater the danger of coercion becomes, and the results can be inequitable indeed. The ways that disputants can be disempowered and coerced in mediation are subtle indeed (see Maxwell 2001), and even conscientious practitioners may be unable to provide a truly level playing field.
In addition, there is the question of how to manage situation in which the disputants disagree on how the process should proceed. How does one negotiate how to negotiate? The possibility exists that more powerful parties will be able to control the process while weaker parties or those who are too meek to militate for their rights will be marginalized.
Finally, there is the problem of practicality. If one is to develop a variety of process models based on cultural orientations, then one faces great hurdles in terms of implementation. For example, in Hawaii there are numerous social and ethnic groups and a well-established system of mediation. If they were to utilize the ethno-conflict method, would they need to elicit various conflict styles from these different populations and then train mediators in all of them? We know that cultures are neither monolithic nor static, does elicitation need to occur in every mediation in order to satisfactorily integrate continually changing cultural perspectives into the process? What would that mean for training?
Scholars have used multiple labels to distinguish between two primary trends in North American mediation. In terms of this discussion, the process vs. content distinction is particularly heuristic. Transformative approaches fall into the process category, meaning that the process of the nature of the mediation event itself can be modified according to the preferences of the participants. Narrative styles are elaborations of the historically more widespread model of facilitation — i.e. the content approach. Such mediators make great efforts to draw out the perspectives and stories of the disputants and often strive to allow them to determine the actual makeup of the discussion.
I firmly believe that the process or elicitive paradigm has great potential. To reiterate our previous example, culture influences not only what people choose to negotiate about (content), but also how they view negotiation and whether they in fact want to negotiate at all (process). Although the current formulations of the process model do contain cultural preconceptions, they represent a substantial move in the right direction. Our accumulated knowledge of culture suggests that an open and integrative praxis is essential to mediation becoming a truly multicultural field. To date, no satisfactory method has been found for consistently dealing with multiculturalism in mediation. Broad generalizations and simplistic conceptualizations of culture may work in some cases, but may be counter-productive in others (e.g. if the Chinese woman had been too shy to speak against matching and had been unable to speak freely in the mediation as s result). We face a difficult paradox. On the one hand, cultural differences can call into question basic assumptions (e.g. beliefs about human nature, society, the environment, etc.) that inform our practice. On the other hand, “culture” is so dynamic and multidimensional that one can hardly grasp it. Translating theoretically sophisticated conceptualizations of culture into practice remains a challenge faced by scholar-practitioners and those interested in creating truly multicultural modalities of mediation.
It is worth summarizing what all this signifies for the applied realm. One of the main strengths of the elicitive school is that it promotes a flexible practice. In light of the integral (yet heterogeneous and dynamic) role of culture in conflict, an inclusive approach is essential to a successful and sustainable practice. It is true that a complete absence of guidelines for training and practice would carry many risks. However, when one recognizes the influence of culture on basic assumptions that are expressed in conflict resolution strategies, then it becomes clear that there is a direct correlation between the level of structuring in mediation and the degree to which models of practice are culturally particular.
We have reached a point where cultural variation in mediation is no longer a fringe topic, but has become widely accepted. However, in the U.S., we are simultaneously experiencing strong pressures for standardization through certification requirements and legislation such as the Mediator Reform Act. The danger therefore exists that the shared values of a particular strata of society may be further reinforced as the accepted and even mandated procedure. There may be endeavors to institutionalize multicultural strategies such as matching, but as we have seen these fall short of our goal. It is worth returning once more to Kochman’s words from over 20 years ago:
Clearly, the notion that American society is ‘culturally pluralistic’ is an impotent one if it merely acknowledges that people of different groups have different cultural patterns and perspectives. A culturally pluralistic society must find ways to incorporate these differences into the system, so that they can also influence the formation of social policy, social intervention, and the social interpretation of behavior and events (Kochman 1981:62).
Returning to Kochman’s thesis in the context of mediation in the 21st century highlights the substantial work that remains to be done over twenty years after the publication of his book. It is heartening to see that most scholars and practitioners are now willing to accept that societal variance has at least some significance. However, applying empirical data, such as those from The Gambia, to Kochman underlines the extent of the challenge facing us. Gadlin’s critique was certainly relevant — generalizing about conflict styles is problematic. However, the African data also emphasize the centrality of socio-cultural perspectives in conflict and its management.
The belief in the universality of ADR has proven to have an enduring impact and cannot yet be dismissed. However, and perhaps more significantly, there is also a marked need for the continued enhancement of even that practice which explicitly aims for multicultural sensitivity. That does represent a formidable task, and I would like to qualify the above critiques by stressing that these methodologies do represent laudable steps toward addressing a formidable challenge. Years of study have failed to resolve the culture question, raising provocative questions. Is culture so dynamic and diffuse that it limits the efficacy of the common approach of striving to develop “cultural competence” in specific groups or populations?18 The aforementioned anthropological advances in cultural analysis can be interpreted to suggest that, on some level, all mediations are “intercultural.” Perhaps training designed to prepare practitioners for working with a specific group or groups is self-limiting. I suspect that the most fruitful direction may be to focus our energies on exploring how to craft an adaptive practice that still minimizes the risks that accompany a lack of structure.
As globalization and transnational migration continue, dramatic change is becoming the norm. To remain relevant and appropriate, conflict resolution processes will need to be dynamic and cannot continue relying on set notions of the cultural perspectives of a given group or groups. Given the immense capacities for destruction that we have developed and the frightening increase in inter-societal polarization, there is every reason to strive for a more culturally sophisticated practice in order to maximize the promise of our field. That is one of the greatest tasks facing those of us dedicated to contributing to a better future through productive engagements with conflict. Our success, I believe, will be directly related to the amount of “mindfulness” we can muster and the degree of flexibility, multiplicity, and inclusiveness that we can incorporate.
By Mark Davidheiser
1 Kochman, Thomas. Black and White Styles of Conflict. Chicago and London: University of Chicago Press. 1981
2 Fisher, Roger and Ury, William. Getting to Yes: Negotiating Agreement Without Giving In. New York: Penguin Books, 1981.
3 Scott, Michelle K. “Exploring the Intragroup Conflict Constructs and Behaviors of African America Public School Children in an Inner-City Conflict Resolution Education (CRE) Program.” Conflict Resolution Quarterly. 21(1): 95-112. 2003.
4 Kochman, op cit. 125.
5 Ibid, 21.
6 Labov, William. The Study of Non-Standard English. Champaign, IL: National Council of Teachers of English. 1970. Dandy, Evelyn B. Black Communications: Breaking Down the Barriers. Chicago: African American Images. 1991.
7 Williams, Andrea. “Resolving Conflict in a Multicultural Environment.” MCS Conciliation Quarterly. Summer, 1994. Pp. 2-6. Menkel-Meadow, C. “The Trouble with the Adversary System in a Postmodern, Multicultural World.” William and Mary Law Review. 38: 5. 1996.
8 Cohen, Raymond. Negotiating Across Cultures: Communication Obstacles in International Diplomacy. Washington D.C.: United States Institute of Peace Press. 1991. Goldstein, Susan B. “Construction and Validation of a Conflict Communication Scale.” Journal of Applied Social Psychology. 29(9): 1803-1832. 1999. Singer, M. R. Intercultural Communication: A Perceptual Approach. Englewood Cliffs, NJ: Prentice-Hall. 1987.
9 Ting-Toomey, S. “Toward a Theory of Conflict and Culture.” In Communication, Culture, and Organizational Processes: International and Intercultural Communication Annual 11. W.B. Gudykundst, L. P. Stewart, and S. Ting-Toomey (eds.).Beverly Hills, CA: Sage. 1985. Ting-Toomey, S. “Intercultural Conflict Styles: A Face-Negotiation Theory.” In Theories in Intercultural Communication. Y. Kim and W. Gudykunst (eds.). Beverly Hills, CA: Sage. 1988. Goldstein, Susan B. “Cultural Issues in Mediation: A Literature Review.” PCR Working Paper: 1986-1. Program on Conflict Resolution. Manoa: University of Hawaii. 1986.
10 Avruch, Kevin. “Context and Pretext in Conflict Resolution.”Journal of Dispute Resolution. 2003(2): 319-352. 2003a.
11 Gadlin, H. “Conflict resolution, cultural differences, and the culture of racism.” Negotiation, 10 (J 33). 1994.
12 Viswanathan, Hari and Jon Ptak. “Power in Mediation: An Analysis of St. Stephen’s Community House.” Dispute Resolution Award paper of 1991. Canadian Forum on Civil Justice. Available from http:// www.cfcj-fcjc.org. 1991.
13 Fisher, Linda and Jeremy Long. Cultural Differences and Conflict in the Australian Community. Centre for Multicultural Studies, University of Wollongong, Australia. 1991.
14 Savage, C. “Culture and Mediation: A Red Herring.” American University Journal of Gender and the Law. 5: 269-293. 1996.
15 Handwerker, W. Penn. “The Construct Validity of Cultures: Cultural Diversity, Culture Theory, and a Method for Ethnography.” American Anthropologist. 104(1): 106-122. 2002.
16 Leeds, Christopher A. “Conflicts Across Cultures: Challenges to Practitioners.” The International Journal of Peace Studies. 2(2). 1997, p. 6.
17 Dana, Daniel. Managing Differences: How to Build Better Relationships at Work and Home. Third edition. MTI Publications. 2001. View the book at http://www.mediationworks.com/mti/bookcvr.htm
18 LeBaron, Michelle and Zena D. Zumeta. “Windows on Diversity: Lawyers, Culture, and Mediation Practice. Conflict Resolution Quarterly. 20(4): 463-472. 2004.