The Australian Family Law Council in its 2012 report into improving the family law system’s response to families from culturally and linguistically diverse backgrounds recommended, among other things, that a cultural competency framework be developed. It is important that those professionals and services providing family dispute resolution (FDR) consider how to do this effectively. Australian Law Reform Commissions have recommended that culturally responsive approaches to FDR be developed and implemented in a comprehensive, strategic and holistic manner. Good mediator practice with people from culturally (and religiously) diverse backgrounds is informed by guidelines or principles that emerge organically as a synthesis of mediator responses as they engage dynamically and reflectively with the people they encounter.
Culturally responsive mediators understand the fluid, fragmented and contested nature of culture, that it is a source of identity and power, and that it plays a role in the creation and resolution of conflict and disputes. As Sonia Shah Kazemi has observed, ‘mediation does not and cannot be situated in a cultural or normative vacuum; the disputants’ view of the world, their cultural identities, their universe of meaning invariably and indelibly shape the dispute management process.’ Cultural influences are not always easy to discern however, and are most often visible, as Kevin Avruch argues, when thrown into relief by the quality of difference. Culturally responsive mediators are aware that there is cultural difference, and that culture (and religion) may be powerful forces in people’s lives and conflicts; they perceive the cultural values and assumptions embedded in mediation and that they bring to its practice; and they are conscious that its processes may need to be adapted differently for each person. So whilst some ‘cultural knowledge’ may assist in knowing where to begin, the crucial attribute is responsiveness: listening carefully to each participant, engaging in conversation to understand their relational context and priorities and making fine judgments about the interventions to support the parties to achieve mediation’s broader goal of self determination (which itself will be culturally inscribed). Effective mediator responses to culture are ethical, situational and relational.
Responses are ethical decisions because they take account of the interests of others. Indeed, it is likely that every choice a mediator makes is likely to be an ethical one. They are contextual or situational, because the judgments are made in the moment in response to concrete situations. And they are relational, not only because family is the subject of dispute and we are all constituted by our relational contexts, but also because norms and expectations about family relationships are often central to the cultural identity of people from minority cultural and faith communities. They are also relational because, as identified above, cultural difference is often articulated through encounter and exchange with others. Adopting an ethical, situational and relational response to culture in mediation is important if culture is understood as a dynamic process of meaning-making, as Joan Laird notes ‘always contextual, emergent, improvisational, transformational, and political.’ Such an approach requires ongoing professional evaluation of the developing requirements of the parties, responding reflectively to their particular needs and circumstances throughout the mediation.