Multicultural Implications in Mediation: Part I

Multicultural Implications in Mediation

Part I: Issues and Challenges

Niharika Ahuja

This is Part I of a three part series of posts by Niharika Ahuja. Niharika holds an LLM in dispute resolution with high distinction from Bond University. She is currently training as a family mediator in Alberta, Canada.

Mediation is a tool that helps to bridge the gap between differences, and this requires knowing and respecting the culture of people that you meet.[1]

Many Western nations have seen a rapid growth of individuals from a diverse range of cultures, religions, and beliefs over recent decades. In Australia, over 43 percent of the population were born overseas from over 200 different countries and are now permanently settled in the country.[2] Due to the increasing cultural diversity in many countries, maintaining social order requires cultural sensitivity and respect towards the particular issues or lifestyles of minority groups. This is not only relevant in our social or justice system but also in mediation.

As one of the key features of mediation is communication, it is critical that mediators and the parties understand each other’s cultural experiences. However, this may put mediators in a difficult position. On one hand, mediators are obligated to remain neutral between the parties. At the same time, however, it is crucial for the parties’ background and emotions to be understood and accommodated, which may require active steps on the part of the mediator. Allowing for flexibility in responding to cultural issues within the mediation process can help to achieve the important social objective of maintaining social order across cultural differences.

The mediation process

Mediation involves the voluntary attendance by both parties to resolve their dispute with the guidance of a third party, the mediator. In the introduction to the process, clarification is given regarding the roles of the mediator and the parties. It is clarified that the mediator is there to direct the process, while the parties are in control of the substantive or content issues. This is to ensure that mediators do not overstep their limits by imposing any value judgments on the parties and their dispute.

The opening statements allow parties to ‘tell their story’ by explaining the concerns that have brought them to the mediation. Researchers and mediators have given particular attention and value to this stage to see how it allows the parties to achieve their version of justice by articulating their concerns.[3] What is worth noting here, however, is that the parties are disclosing these statements to the mediator, who is considered the figurehead or authority throughout that session. Therefore the parties may feel the need to display their story according to what would resonate with the mediator the most.

One of the most significant and valued communication strategies used by mediators is rephrasing. Rephrasing promotes understanding between the parties by encouraging them to rephrase their assertive emotions and statements into neutral interests. An important concern at this stage of the mediation is that some cultures prefer to express or deal with conflicts in an emotional rather than neutral or rational way. This potential challenge would require the mediator to have the skills to guide the mediation according to how the parties are accustomed to resolving it in their cultural tradition.

The role of Western culture

Morgan Brigg has undertaken valuable research on how the mediation process is shaped by Western culture.[4] Brigg notes that the Western ideology adopts a different approach to selfhood as opposed to other cultures. The Western ideology is mainly that conflict is destructive and can only be resolved by peace and harmony. This is problematic, as many cultures have a different perception and way of resolving or not resolving conflicts, as will be discussed in more detail in my next blog post.

What is important to acknowledge is that this ideology has heavily influenced and dominated the way mediation is conducted. Aside from the mediator’s own perception being molded by these ideologies, the actual process, and organisation of the mediation may reflect a Western approach to conflict. For instance, mediators are the most satisfied with the process when the parties have reached an actual agreement between them. This satisfaction is dependent on the fact that mediators perceive their duty as resolving conflicts by peace and harmony, in accordance with the Western ideology.

My next post will further explore the role of cultural differences in shaping responses to conflict, looking particularly at the experiences and challenges faced by Aboriginal and Torres Strait Islander people in the mediation process.

[1] Alessandra Sgubini, ‘Mediation and Culture: How Different Cultural Backgrounds Can Affect the Way People Negotiate and Resolve Disputes’, Mediate.com (March 2006) <https://www.mediate.com/articles/sgubinia4.cfm>.

[2] Siew Fang Law, ‘Culturally Sensitive Mediation: The Importance of Culture in Mediation Accreditation’ (2009) 20 ADRJ 162, 162.

[3] See, for example, Isabelle R Gunning, ‘Diversity Issues in Mediation: Controlling Negative Cultural Myths’ (1995) Journal of Dispute Resolution 68.

[4] Morgan Brigg, ‘Mediation, Power and Cultural Difference’ (2003) 20(3) Conflict Resolution Quarterly 289.

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One thought on “Multicultural Implications in Mediation: Part I

  1. An interesting and important contribution and I look forward to reading the next instalement

    If one considers the potential class between cultural context and western concepts and structures of dispute resolution (including, perhaps impermissible our court systems as a central manifestation of dispute resolution – as Justice Rares points out courts are far more than a means of dispute resolution) then the significant benefits of mediation over litigation are emphasised. The adversarial court process, as means of quelling controversy by “getting to the truth”- itself, as Dr Greg Phillips points out, an inherently Anglo-normative concept, assuming only one objective truth, does not readily permit a perception of justice, procedural or otherwise, for communities of difference. Hence, mediation permits and facilitates a more organic and responsive justice

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