Following recent meetings with some of the mediation “stakeholders” in Singapore, I’ve been thinking about another dimension of culture and mediation. We typically think in terms of the impact of culture on process, perceptions of conflict, relationships and so on; but what becomes apparent is the impact of context and culture on the foundation of mediation – that is, on how mediation fits the normative and cultural life of a community or society and how, in it’s more modern versions, mediation programmes are initiated.
Part of the question here arises because there are perceived to be challenges in getting mediation going – even though it is, in many respects, well established. And it now seems blindingly obvious to me that some of the obstacles to developing – or more likely exporting – mediation in and to new locations arise because of questions of cultural “fit”.
This now is how I look back on the same questions I addressed in looking at why mediation seemed to be slow in developing in Germany, notwithstanding the fact that the same sociology, the same issues of access to justice etc were all being considered in Germany at the same time as in the US, the UK, NZ etc. If I think of the literature I read at that time, the issue may well be this:
1. the German response was one of constitutional and legal caution, hesitating to adopt a process that seemed not to have solid constitutional and legal foundations;
2. the American literature on the founding ideals of “alternative” dispute resolution emphasised autonomy, critiques of legal formalism, the primacy of participation and choice . . . all of which are in fact challenges to core principles of legality;
3. at the same time, note the parallel critique of ADR from people like Fiss and Luban, concerned at the loss of the public domain in law and norms – a critique not unlike the early German reservations;
4. when, however, mediation can be given a place within the structures of law – through legislation, through court-annexed processes, or through judicial mediation, then at least some of those reservations are dimmed.
So, if I think about the issues of establishing mediation in, say, Singapore, some of the elements are these – especially when the question turns to locating the right “champion” to assist in the promotion of mediation, or determining the government agencies that need to be brought onside:
1. What values of mediation are being promoted (or are contested)?
– access to justice
– equity (including economic and indigenous equity issues);
– autonomy, responsibility
– efficiency and cost saving
– social cohesion, civic values
2. What process of mediation is promoted?
– independent, ‘alternative’
– Western, Asian . . .
3. What agencies are engaged?
– professions (new turf wars?)
– government (legislation)
– community bodies
– indigenous, faith or cultural groups
– civil society
4. What outcomes are expected?
– cost and time saving
– capacity building
– autonomy and participation
– civic and civil dialogue (cf médiation sociale)
5. What constraints and critiques?
– public values (vs. private settlement)
– constitutional, formalist
– limiting court access (rights issues)
– loss of precedent
– emergence of parallel faith-based systems
6. What history is invoked (in promoting mediation)?
– the rise of informalism
– critiques of legalism
– community activism
– efficiency aims
– pluralism and indigenous & faith-based processes
– democratic participation and dialogue (e.g. in negotiated rule making)
7. What politics and policy issues?
– liberal individualism and values of autonomy, choice;
– identity, indigeneity, pluralism
– state interests in efficiency, costs, court backlogs
– negotiated rule making: participatory politics
– normative coherence (and managing mediation)
8. What jurisprudence is invoked?
– pluralism: substantive, procedural
– soft law and the role of the state;
– justice: again, procedural and substantive
– legitimacy – either [and these seem to be competing values]:
• by maintaining links to the legal mothership or
• by fostering wider access to resolution/justice
– role of state institutions in decision making
• what distance between mediation and law?
– institutional & political priorities:
• e.g. Singapore’s “hub” aspirations
• what policy reasons for promoting mediation
• civic and community values;
• mediation as a form of informal social ordering (cf Abel)
9. What cultural norms and values?
– recognition and inclusion of cultural processes
– creation and recognition of separate processes
– a cosmopolitan approach to the negotiation of pluralism
– or liberal assumptions (Brian Barry) of sufficient inclusiveness
– faith-based claims to distinctiveness
– indigeneity claims
10. What idea of agency in legal process and development?
– who are the drivers and champions
– what is the scope for initiative
– how is agency shaped by expected outcomes – e.g.
• civic order
– how is agency also shaped by the political context
• what ‘permissions’ are needed
• what scope for critical alternatives
The cultural point then is that adapting mediation involves more than adjustments to style, process, language etc – it seems to involve addressing what actually are underlying principles of legitimacy. And my recollection of the German literature on this is that that issue was in fact paramount – not least in the concern that there might be constitutional impropriety in having people making their own decisions which is directly an affront to principles of adjudication and public justice.