Multicultural Implications in Mediation: Part II

Multicultural Implications in Mediation

Part II: Cultural Approaches to Conflict

Niharika Ahuja

This is Part II 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.

What is cultural diversity and why is it important in mediation? Finding a precise definition for ‘culture’ is difficult. Siew Fang Law defines culture as ‘a set of values and beliefs acquired from learning, experiences and social upbringing, which creates implicit social rules or a code of ethics and behaviour within a specific group.’[1] Clarifying what cultural diversity means is essential in order for mediators to understand what aspects form an individual’s cultural experience.

In the mediation process, acknowledging different cultural experiences is important in understanding the parties’ emotions and attitudes. This may be even more complex than it may seem as different cultures have their own unique perceptions and expectations of how conflict must be dealt with. Western cultures differ importantly from Asian and Middle Eastern cultures, for example, in the appropriate ways to negotiate and resolve conflicts (and what a resolution looks like). Another important case study in Australia involves the distinctive perspectives and habits of Aboriginal and Torres Strait Islander (ATSI) people when resolving disputes.

Mediation and ATSI cultures

Mediation appeals to ATSI communities as it is more in tune with their traditional ways of settling disputes within their community than adversarial litigation. Further, mediation is an effective and useful method to re-empower ATSI people by encouraging them to take full ownership and control of the dispute or conflict. However, this may also be dangerous as it may push a certain style of mediation or decision-making process that is inconsistent with the values or beliefs of ATSI cultures. Therefore, to ensure that the advantages are available and are utilised, mediators must remain mindful to conduct the mediation in accordance with the parties’ values.

The Victorian Aboriginal Legal Service (VALS) noted that ATSI dispute resolution should ideally be segregated from mainstream dispute resolution.[2] This was based on the reasoning that mainstream dispute resolution adopts a Western style, potentially alienating ATSI people by not accommodating their values. For an instance, studies show that people from ATSI backgrounds can shift contexts and identities with speed in conflict situations.[3] This may particularly be a problem where the mediation sessions are conducted in a fixed order, according to the agenda.

The traditional cultural framework for settling disputes in ATSI cultural contexts relates to the settlement that occurs within the community, not merely a settlement between individuals. Cultural perceptions of settlement or resolution within ATSI communities are therefore not solely in relation to individual finances or legal consequences, but the collective interests of the group. Furthermore, the Western perception of ‘resolutions’ being finished and not revisited is also contrary to many ATSI traditions. For these communities, the resolution may be continual and social in nature.

Risks and challenges

The VALS study mentioned above noted the consequences and risk of distrust towards the dispute resolution process and the possible missed opportunities.[4] VALS further identified the key inconsistencies between Western-style mediation and the Aboriginal perception of mediation as involving mediator neutrality, confidentiality and communication barriers.[5] Each of these features is potentially at odds with aspects of ATSI cultures mentioned previously. Only when ATSI approaches to conflict are understood can a non-Indigenous mediator understand how to approach the mediation in a way that accommodates the needs and viewpoints of the parties.

This issue cannot be avoided by always selecting an Indigenous mediator, as there will always be instances where a non-Indigenous mediator is preferred (or no alternative is available). Non-Indigenous mediators must therefore ideally be educated and trained not only to understand the cultural behaviour of ATSI communities, but also to learn how the community has traditionally approached similar kinds of disputes in the past and wishes to approach them in the present.

My next blog post will explore some solutions and approaches that mediators can adopt to address these kinds of cultural issues, not only when dealing with ATSI cultures, but in multicultural contexts more generally.

[1] Siew Fang Law, ‘Culturally Sensitive Mediation: The Importance of Culture in Mediation Accreditation’ (2009) 20 ADRJ 162, 163.

[2] Victorian Aboriginal Legal Service, Exploring Culturally Appropriate Dispute Resolution for Aboriginal and Torres Strait Islander Peoples (VALS, 2015) 3 <https://vals.org.au/assets/2015/06/Alternative-Dispute-Resoution-ADR.pdf>.

[3] Deborah B Rose, ‘Indigenous Ecologies and an Ethic of Connection’ (1999) Global Ethics and Environment 172.

[4] Victorian Aboriginal Legal Service, Exploring Culturally Appropriate Dispute Resolution for Aboriginal and Torres Strait Islander Peoples (VALS, 2015) 3 <https://vals.org.au/assets/2015/06/Alternative-Dispute-Resoution-ADR.pdf>.

[5] Ibid 5-8.

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