Diversity and multiculturalism are inextricably intertwined into mediation. While disputes have legal facets, they are rooted in problems stemming from individuals themselves, in addition to the facts. Parties express positions, and an effective mediator needs to look for and recognize underlying interests, values, wants, and needs. In essence, understanding what makes the parties tick can help the mediator resolve the dispute. Whatever the problem, much of the root is found in the people themselves.
Resolution often is advanced through an understanding of cultural differences. This can be reflected in communication. Awareness of cultural differences opens doors and paves avenues toward resolution. While cultural differences vary far and wide so do the categories– everything from religion, to nationality, to regionality, to education, age, and many other variable subsets such as gender, sexual preference, and disability. The mediator who relates with parties with respect to these differences can help bring people together and the parties to place trust in the mediator.
Values arise out of our experiences and our culture. How parties value time, truth, money, resolution, and other factors arise out of our culture, training, educations, circumstances, and background. Addressing parties in a familiar context of these circumstances, training, culture, and background can help yield effective communication.
Cultural competence is an effective tool for communication in any mediator’s skill and knowledge set. While there is no one set definition of “cultural competence,” it is sometimes defined as “a set of values, behaviors, attitudes, and practices within a system, organization, program or among individuals, which enables them to work effectively, cross-culturally.” (See Cross, T., Bazron, B., Dennis, K., & Isaacs, M., (1989). Towards A Culturally Competent System of Care, Volume I. Washington, DC: Georgetown University Child Development Center, CASSP Technical Assistance Center). Some may use the term “diversity competency” to mean this same or similar concept.
As a mediator resolving disputes and relating to individuals, it is important to take stock in cultural biases and figure out how to overcome those. Understanding the biases from a technical standpoint is a first step. We need to be cognizant of our explicit biases and our implicit biases.
Explicit biases, sometimes considered stereotypes, are formed within the conscious mind; these are beliefs and thoughts over which the individual has control. (See Gaertner, Brown, Sam, Rupert (April 15, 2008). Blackwell Handbook of Social Psychology: Intergroup Processes). Often an explicit bias is with respect to a conscious perception about a group of people with a similar attribute. An example might be that all boys like to watch and play football.
On the other hand, “implicit bias” is an unconscious association based on past experiences. (See Greenwald, A. G.; Banaji, M. R. (1995). “Implicit social cognition: Attitudes, self-esteem, and stereotypes”. Psychological Review. 102 (1): 4–27). An example of implicit bias might be a group of persons of an older generation being asked to each picture a doctor, and the perception by the vast majority turns out to be of a male doctor. The same could be true of a similar exercise where the person is asked to think of a criminal and someone of a particular ethnicity disproportionately comes to the sample focus group member’s minds. When the implicit bias is of an ethnicity being associated with criminal activity in the mind of jurors, that is a situation where the implicit bias can impact how society judges and affects individuals such as those accused of criminal activity.
While bias could arise out of a single event, it also can be based on multiple event exposures. One can hold an implicit bias while outright believing also the bias is not part of his or her perceptions. (id). That being said, being conscientious of bias can help one to be mindful and aware to look for it when possible and overcome that bias.
These biases can be based on gender, race, religion, ethnicity, region, occupation, and so many other factors. A mediator who relates to the parties with respect to these cultural differences and who is mindful of biases can potentially relate better with the parties, earn and maintain trust, and help parties to open up. Via this trust comes the sharing which can get to the underlying issues. The mediator can then bring about resolution more effectively. Conversely, the mediator who is unaware of these biases may miss opportunities to relate, may put off one of the decision makers or advisors to a decision maker, and may miss a nuance at the source of the personal conflict between two or more of the parties.
Mediators are only as good as their ability to communicate with parties and representatives. Cultural awareness of biases and diversity can make a mediator that much more effective in this communication.
About the author: Andrew Tolchin is an attorney and mediator in the greater Houston area, and founder of 713 Mediator, LLC and Tolchin Law Firm, PLLC.