Archive for August, 2010

An article in the International Herald Tribune and New York Times for today caught my attention and my initial negative reaction:

Outsourcing to India Draws Western Lawyers

Published: August 4, 2010

This looks, at first sight, like another example of industries relocating, the race to the bottom, the saving of costs at one end – though not necessarily the passing on of the savings (though that conclusion is unfair, given the recognition by law firms that a lot of the work in case preparation does not need the hefty cost of a lawyer, associate, or paralegal).

But from a different perspective, how different is this from the ADR movement of the last 30 years? After all, what we’ve been arguing for is a change in ways we effect access to justice (and indeed, in the ways in which we characterise justice, less as a matter of law than of resolution and fairness). Is it too big a leap to say – only slightly tongue in cheek – that mediation is a form of outsourcing dispute resolution? And if, as I suggested a few posts back, we’re talking about forms of “distributed decision making” when we deal with mediation, arbitration and so on, then in practice this is not a lot different from outsourcing – except that it stays in the same country.


Read Full Post »

This header needs immediate explanation. In a remarkable review article, published in Behavioral and Brain Sciences, authors Joseph Henrich, Steven J. Heine, Ara Norenzayan examine the bias inherent in most current behavioural science research. The full citation and download information is:

Henrich, Joe, Heine, Steven J. and Norenzayan, Ara, The Weirdest People in the World? (May 7, 2010). RatSWD Working Paper No. 139. Available at SSRN: http://ssrn.com/abstract=1601785

See also commentary on a Neuroanthropology blog http://neuroanthropology.net/2010/07/10/we-agree-its-weird-but-is-it-weird-enough/

The core and very important point is this: most behavioural science has been based on empirical studies of WEIRD populations. That is, samples are predominantly taken from – and reflect the responses of – Western, Educated, Industrialised, Rich and Democratic nations. More narrowly than that, the samples are predominantly graduate and undergraduate students of the particular discipline.

There are in fact two important points here: the first is the problem of the sampling bias (and the conclusions too readily drawn about all of human nature and conduct from those samples); the second – and probably more interesting – point is that the “western” cultures typically represented are themselves “outliers”; that is, they are typically at an extreme end of any empirical spectrum.

I’m reminded of the experience a few years back of working in Dubai with a well-known and internationally respected group of negotiation trainers who began the presentation to an audience of smart, savvy people, with words to the effect that we – the trainers – were going to present “global best practice”. You could almost hear the shutters going down!

By way of contrast, the fields of conflict resolution and mediation are rich with practice and literature reflecting the awareness of cultural diversity in perceptions of and responses to conflict. But there remains, as Henrich and colleagues point out, a potential for us simply not to see some key areas where the differences lie. If there is conflict in all cultures; and if all cultures have some forms of negotiation, what we can presumably find are the “global” features of such behaviours.

One of the co-authors of this new paper, Ara Norenzayan, has been at the forefront of conducting research about the impact of culture on perception and cognition – in order to counter the assumptions that there must be some foundational attributes that all humans share, such as our cognitive “hard wiring” and our visual perceptions of “objective” phenomena. [See, for example, A Norenzayan, E E Smith, B J Kim, R E Nisbett “Cultural Preferences for Formal versus Intuitive Reasoning,” Cognitive Science (web version, n.d. And especially see the work of one of Norenzayan’s co-authors: Richard E Nisbett, The Geography of Thought: How Asians and Westerners Think Differently  . . . and Why, (New York, Free Press, 2003).

For those tempted to read the full WEIRD article, here is the abstract:

“Behavioral scientists routinely publish broad claims about human psychology and behavior in the world’s top journals based on samples drawn entirely from Western, Educated, Industrialized, Rich and Democratic (WEIRD) societies. Researchers—often implicitly—assume that either there is little variation across human populations, or that these “standard subjects” are as representative of the species as any other population. Are these assumptions justified? Here, our review of the comparative database from across the behavioral sciences suggests both that there is substantial variability in experimental results across populations and that WEIRD subjects are particularly unusual compared with the rest of the species—frequent outliers. The domains reviewed include visual perception, fairness, cooperation, spatial reasoning, categorization and inferential induction, moral reasoning, reasoning styles, self-concepts and related motivations, and the heritability of IQ. The findings suggest that members of WEIRD societies, including young children, are among the least representative populations one could find for generalizing about humans. Many of these findings involve domains that are associated with fundamental aspects of psychology, motivation, and behavior—hence, there are no obvious a priori grounds for claiming that a particular behavioral phenomenon is universal based on sampling from a single subpopulation. Overall, these empirical patterns suggests that we need to be less cavalier in addressing questions of human nature on the basis of data drawn from this particularly thin, and rather unusual, slice of humanity. We close by proposing ways to structurally re‐organize the behavioral sciences to best tackle these challenges.”

The whole article is well worth reading.

The relevance to mediation? Simply this: mediation as a subject of behavioural and comparative study risks reflecting the same empirical bias, even where there are conscious attempts to recognise the differences across cultures. As early feminist theory argued, the challenge is to conduct one’s research and analysis without falling into the trap of assuming that one mode of perception or conduct was the “norm” and that the other was in some way deviant.

There’s an inherent irony in thinking about this issue of perception and practice in mediation, in that we know that we (the WEIRD ones) borrowed the basic idea of mediation from non-Western, small-scale, non-industrialised countries. And then we proceeded to establish a set of practices, processes and norms that retained some of the basic structure of mediation (i.e. third party intervention), but reflected a radically different set of assumptions about autonomy, individualism, participation, and the norm-generating role of mediation.

What the authors make clear is that how we see is very largely a function of the context in which we have learned to see. And, perhaps with a slightly mischievous grin, they comment that the typical sample group for behavioural science studies are the children of WEIRD parents – that is, typically urban, educated and, more importantly, from a “culturally and experientially impoverished environment”. For those who live in and celebrate the richness of the modern urban world, it might seem odd to be told that this is a “culturally impoverished” environment. But what the authors have in mind here is the point that, in the WEIRD world, knowledge and perception are constrained by the physical environment, especially in matters relating to perception of the natural world. (Conversely, of course, Karl Marx would sniff derisively about the idiocy of rural life . . . but this is not a contest about the moral or political preferability of rural or urban life!)

The authors also make the point, in commenting on the assumption that the WEIRD world can be the basis for generalisation and on the fact that the WEIRD world itself is out on a limb, that if we were to claim general and global conclusions on the basis of studying, say, a small-scale, developing, hierarchical society, there would surely be objections about the inadequacy of the science.

At the very least, the article is a call for humility in the breadth of conclusions we draw about “the world” on the basis of either perception or science. As Nisbett asks:

“If people really do differ profoundly in their systems of thought – their worldviews and cognitive processes – then differences in people’s attitudes and beliefs, and even their values and preferences, might not be a matter merely of different inputs and teachings, but rather an inevitable consequence of using different tools to understand the world.” [xvii]

For our purposes, perceptions of conflict and mediation cannot be isolated from the participants’ experiential world and, to the extent that relationships to others lie at the heart of conflict mitigation and transformation, we also need to know how – in context – participants have learned to see others. This can point to differences at an individual level; but it is also tested in cultural and religious settings, to indicate the extent to which the subject’s social context makes it more likely that they will be field dependent or independent. And, the greater the degree of social control, specificity of normative constraints, the more likely it is that the subject’s perceptual/cognitive mode will be field dependent (and vice versa). [Nisbett, citing Z Dershowitz, “Jewish subcultural patterns and psychological differentiation,” International Journal of Psychology, 6: 223-231 (1971)]

Thus (and to close off this comment on perception, conflict and ‘normality’), consider Nisbett’s point”

“East Asians live in an interdependent world in which the self is part of a larger whole; Westerners live in a world in which the self is a unitary free agent . . . Easterners value fitting in and engage in self-criticism to make sure that they do so; Westerners value individuality and strive to make themselves look good. Easterners are highly attuned to the feelings of others and strive for interpersonal harmony; Westerners are more concerned with knowing themselves and prepared to sacrifice harmony for fairness . . . Asian avoid controversy and debate; Westerners have faith in the rhetoric of argumentation in arenas from the law to politics to science.” [76-77]

Read Full Post »