Multicultural Implications in Mediation
Part III: Solutions and Strategies
This is Part III 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.
In order for there to be progress in implementing a culturally sensitive approach to mediation, there must be changes and improvement at all stages of the mediation process. This would involve, first, being mindful of the type of mediators that are selected to deal with multi-cultural disputes and, second, training the mediators to become competent in different types of cultural experiences. These two approaches would need to be supported by clear guidelines or requirements within the mediation training and accreditation systems.
Mediator selection is particularly important in this discussion. The type of mediator that is chosen to deal with the parties’ conflict plays an important role in how the emotions, mindset or cultural background of the parties are understood and accommodated. Selecting the appropriate mediator can also help to bridge the cultural differences between parties. Harold Abramson argues, for instance, that a mediator’s credentials should include being trained to deal with cultural differences that may arise in a particular dispute and having the ability to approach the mediation in a way that fits the cultural needs of the parties.
Training and accreditation
Training and accreditation processes also play an important role. In Australia, there have been inclusions of cultural sensitivity in the Practice Standards for the National Mediation Accreditation System (NMAS). In spite of this, studies show that there has been insufficient research done on how mediators can be culturally trained. Siew Fang Law found that the reason for this is due to the complex nature of culture itself, the lack of the practitioners’ or students’ motivation to deal with the complexity of cultural issues and, finally, the fact that the predominant expert theorists are male, white and from middle-class backgrounds.
However, Law also posed some interesting suggestions on how these hurdles could potentially be overcome. The strongest suggestion was that intercultural training programs should be included and implemented in the accreditation training for mediators. She proposes the following questions and challenges that the mediation training providers should consider:
- Is the current mediation training program effective in producing culturally sensitive practitioners?
- How many hours of training should be devoted to the intercultural component?
- Are the existing mediation trainers capable of teaching intercultural mediation?
- Are there sufficient and appropriate intercultural training resources?
- How should intercultural mediation competence be assessed?
Competence and professionalism
The final element of this picture is mediator competence and professionalism. The ideal mediator would have to adapt and adjust the mediation according to the mix of cultures that are present in the session. However, in order for this to be possible, the mediator would be required to play an active and responsive role. As mediators have the duty to be a neutral and non-interventionist figure, this intervention would have to be dealt with cautiously. The mediator would have to exercise judgment in understanding different cultural experiences through a party’s behavior or emotions and determining how to adjust the mediation accordingly.
Law also made a list of four qualities a culturally aware and sensitive mediator should ideally possess. The first was for the mediator to be self-aware and willing to learn. Secondly, the mediator ought to have awareness of the importance of reflection, in order to have the ability to question his or her cultural and practical assumptions and seek feedback on these assumptions from third parties. This would allow for mediators to recognise and understand the perspectives of others, rather than simply assuming or imposing their own viewpoint.
The third quality would be for the mediator to understand cross-cultural communication patterns and how to use interpreters and translators. This is important, as it would allow the mediator to understand how the parties in the mediation communicate and thereby avoid any misunderstandings that might otherwise occur. The last quality would be for the mediator to comprehend the relationship between language, culture, and power and to adopt a flexible attitude to accommodate for such habits throughout the mediation. Law argues persuasively that these essential skills can enhance the competency of a culturally aware mediator.
 Hilary Astor and Christine M Chinkin, Dispute Resolution in Australia (Lexis Nexis, 2nd ed, 2002) 253.
 Ibid 254.
 Siew Fang Law, ‘Culturally Sensitive Mediation: The Importance of Culture in Mediation Accreditation’ (2009) 20 ADRJ 163.
 Ibid 164.
 Ibid 166.
 Ibid 168.