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Archive for February, 2011

In 2009, I posted a short comment to this blog on some of the responses that come up in teaching and training in Singapore. This was my post https://mediasian.wordpress.com/2009/10/01/being-here-training-there-thinking-where/. There I was concerned simply to note the quite different interpretations of watching Twelve Angry Men with a  class of Singaporean students.

In this post I want to draw attention to Hal Abramson‘s 2008 article, “Crossing Borders into New Ethical Territory: Ethical Challenges When Mediating Cross-Culturally,”  49 S. Tex. L. Rev. 921 2007-2008 [download at http://digitalcommons.tourolaw.edu/cgi/viewcontent.cgi?]article=1000&context=scholarlyworks]

In that article Hal explores a hypothetical in which a mediator is confronted with the possibility that the outcome the parties may arrive at, while consistent with their own cultural and/or religious norms is (i) likely to be incompatible with deeply held values of the mediator or  (ii) incompatible with international norms and rules. At the heart of this is the challenge to the conventions about neutrality, the mediator’s focus on process and not substance, party autonomy, and the cultural flexibility of mediation.

While it’s not expressly mentioned, I take it from the article that the dilemma of the hypothetical – a couple divorcing under Islamic law, in which the wife appears to face significant fiscal and child access disadvantages – arises specifically when the mediation takes place in the mediator’s home jurisdiction, e.g. New York, rather than, say, Teheran.

Here I want to note simply several variants on the context of the dilemma, and one further variant on the challenge that can be posed by this kind of scenario.

First, contextual variations:

  1. The mediator is at ‘home’, and the disputants are – at least originally – from another culture. This in turn has its own variations:
    1. The disputants are from a settled migrant community that has retained a strong cultural identity;
    2. The disputants are from a relatively recently arrived migrant group, still attached to the culture of their home (for a wider and wiser discussion of this, see Seyla Benhabib and Judith Resnick (eds) Migrations and Mobilities: Citizenship, Borders, and Gender (NYU Press, 2009)
  2. The mediator is the ‘outsider’ and the disputants are ‘at home. Again, internal variations on this:
    1. The mediator has been flown in, say, to mediate the dispute (perhaps more likely in commercial cases);
    2. The mediator works for an international agency or NGO working in the country, and finds herself in a mediating role;
    3. The mediator belongs to one cultural grouping (say, of European/Anglo origin) and the disputants belong to an indigenous population (Maori, Australian Aborigine, Native American etc)
    4. Ditto with 3 above, but the disputants are not indigenous but rather from a significant and long term minority (Hispanic, in the US; Pacific Island in New Zealand etc)
  3. All parties are ‘insiders’, but belong to different cultural or faith groups (e.g. in Singapore, the three core communities of Chinese, Indian and Malay);
  4. All parties are ‘outsiders’ – that is, none is ‘at home’, but find themselves in a mediation where the mediator does not share the cultural identity of the disputants (I can imagine this arising in, say, Dubai);
  5. Or, in a variation in any of the above situations, the mediator shares cultural identity with one of the parties but not the other; but – again perhaps in a divorce case
    1. the norms the parties seek to work by are the norms of one party and the mediator; or
    2. the norms the parties want to rely on are insisted on by one party (again, let’s imagine shariah law as this is Hal’s original case, which the parties married under) but the other part now wishes not to be subject to that regime; and the mediator shares that latter party’s norms.

No doubt the variation could continue, but the point here is simply to reflect on the many settings in which the dilemma for the mediator, including the consideration of withdrawing from the mediation, can arise. What’s important about this is the avoidance of any clear prescription as to what the mediator is obliged to do (should I stay or should I go?); but rather, there’s a process of inquiry and dialogue in working out what’s the right thing to do, not least for the mediator’s integrity but also for the parties.

One further variation: in each of these possible scenarios, and in the hypothetical Hal analyses, it’s clear that there are cultural norms and values that the parties are committed to. But one variant emerges more from the literature and politics of multiculturalism and pluralism than mediation at this stage – and that involves the deliberate, strategic use of cultural claims. Much of that literature on multiculturalism has been concerned to address the policy implications of the “claims of culture” (Seyla Benhabib’s term, in The Claims of Culture (Princeton UP 2002) where:

  1. the claims are to special consideration, as a migrant, minority, or indigenous group, simply on the basis of the normative strength of “culture”; or
  2. policies of accommodation seek to find ways of recognising some dimensions of cultural identity and practice but, at the same time, seek to place limits in terms of the interests of values of claimed ‘national’ values.

In practice, this is where a challenge can arise for the mediator in one of two ways:

  1. First, where the claims of cultural norms and practice are held out as non-negotiable foundations of the ensuing discussion (and this is really the dilemma Hal seeks to address); and
  2. Second, more cynically, where the parties – sharing one set of cultural norms – insist on certain practices which, on inquiry might turn out to have more to do with personal preference than genuine cultural norms; but the sword and shield of culture act as a barrier to further inquiry or action by the mediator.

As Hal’s paper rests on a discussion of the ethical dilemma, I finish with what seems to me an important direction in ethical theory and practice, which is to focus less on the construction of prescriptions about outcomes than on the process (as he argues) of inquiry and, as multicultural theorists recognise, of discourse and engagement. The reality is that

  1. Cultures are not homogeneous; they are contested;
  2. And they are contested in at least two ways:
    1. Internally – that is, in terms of what it takes to be of a particular identity; and
    2. Externally – that is, a contestability of significance, priority, recognition, alongside other cultures (which, in the face of this contestation, are likely to develop and create a more homogeneous version of their identity).
  3. But, while they are contested and contestable, they are still important;
  4. And in the face of the homogenising influence of globalisation, identities are likely to become more important.

What this points to is a process of deliberation, both as a form of inquiry into difference and – for the mediation process – as a form of normative, and norm-generating, dialogue. The risk of a scenario such as Hal discusses is that the claimants appear to present what Amartya Sen refers to as “singular identities” [Identity and Violence: The Illusion of Destiny, Norton & Co, 2006). And it may be that the process of mediation is not only about the substance and outcomes but also about mediating the scope of identity itself.

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http://www.uoc.edu/masters/eng/master/web/cooperacion_humanitaria_paz_y_sostenibilidad/conflictologia/index.html

Matriculation at the Open University of Catalonia for advanced courses in Dispute Resolution and Global Trends in Armed Conflicts is now open.
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