Archive for the ‘Culture’ Category

That’s a headline that tries to capture it all. The single point of this entry is to make note of, and direct attention to, a recent article in the Boston Review on the role of literature, and especially poetry, in reducing violence and – over time – humanising us. The article is by Prof Elaine Scarry, and is “Poetry that changed the world: Injury and the ethics of reading” which you can find here.

At the end you’ll find the usual range of supportive and vituperative responses – the latter at least revealing that we’ve some way to go before the “comments” sections of web sites will meet the Habermasian hope of public deliberation, rather than the practice of firing broadsides.

While the article is clearly not about mediation and Asia, at the same time it is . . . in the sense that the core of the argument is about the degree to which literature, especially poetry, has shaped our understanding of others, through fostering the capacities of empathy, discourse/dialogue and beauty. For mediators, the especially interesting part – I find – is in the discussion of those genres of poetry that pit opposites together in moral and mortal combat. It’s reminiscent of the epic poems of Iceland, in which the sagas of the immortals and heroes were ways of capturing the perennial themes of order and chaos, loss and redemption and so on.

There may also be a cultural and historical point to explore, which was beyond the brief of the original author, concerning the possible links between the political and moral life of a community and the type of literature that prevails – or even whether the “humanities” remain a force in the curricula of universities. On that, see for example Richard Sennet’s essay on “Humanism” in The Hedgehog Review. The particular question Prof Scarry raises is as to the humanising power of fiction, through which we may come to learn empathy, especially with those characters who are not like us. She calls on the recent work of Stephen Pinker and his tracing of the reduction of levels of violence – despite the appearances of the 20th century – and the re-emergence of empathy. It is possible to claim that, where there is less emphasis on those “humanities” there may also be less empathy – exemplified (she might claim) in the persistence of the death penalty as at least one possible marker?

There is, I suspect, a parallel line of thinking to be pursued here, taking up the discussion that Jeremy Rifkin explored in his book The Empathic Civilization. The argument there too is that, despite the appearance of conflict, greed, self-interest etc; and despite the predominance of an economic ethic that portrays us as self-interested, utility maximising game-players, it is empathy rather than selfishness that is the core – and evolutionary – value.

The point for mediation may be more narrowly cast: ancient traditions of literature and narrative are, in a variety of voices, ways of exploring conflict, opposition and resolution. At the heart of narrative is conflict; and, conversely, at the heart of conflict is narrative – the power of story, in which we may explore difference and resolution. This, for me, comes back to the point in an earlier post in this blog, to the effect that at the heart of mediation and negotiation lies the core need we have to tell our stories and to have them heard.


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Close to 20 years ago (in fact, in 1995) a group of us met in Cambridge, MA, under the auspices of the Program on Negotiation’s public/practice offshoot, to talk about just one question, roughly paraphrased – what’s  left of the “Harvard model” of negotiation once you add culture? In part this was a response to the concerns expressed by critical commentators that this supposedly neutral process of negotiation was, in reality, a cultural model in its own right. We can date that meeting tragically, as Jeff Rubin, one of the participants, died in a mountaineering accident the following weekend.

No report ever came out of that meeting; but we can see the burgeoning literature on culture, conflict and negotiation as continuing the conversation.

It’s interesting to recall, however, the one simple conclusion was reached as to the impact of culture on this core (Western) model of negotiation: people need to tell their stories. And the task of negotiators – and mediators – is to attend, to respect, to challenge those stories; to modify their own; and jointly – in the kind of metaphor used by John Paul Lederach – to weave solutions out of those narratives.

None of this will come as a surprise to practitioners of narrative mediation and the work of John Winslade and colleagues, in which the narratives of a conflict lie at the heart of understand and transforming a conflict.

It’s also recognised that we spin stories, augment the truth, deceive even ourselves in recounting the “truth” of  conflict. See, for example, this blog by Cinnie Noble: http://www.adrhub.com/profiles/blogs/true-or-not-so-true-conflict-story-telling.

The point of this note is partly just recall that challenge to the model that has become so central to contemporary negotiation practice – and to note, as far as I’m aware, that nothing ever became of the conclusion. It’s partly also to link negotiation and, even more so, mediation, with the “narrative gift” which Jerome Bruner sees as not only central to how we make sense of the world but also as “one of the principal forms of peacekeeping.” (Acts of Meaning, Cambridge, MA, Harvard U.P., 1990; p.95).

Three aspects of narratives or stories at least can be linked to dispute resolution and transformation practice:

  1. first, the existential foundation, the recognition that we do, and need to tell stories, to construct a narrative reality (taken to quasi-fictional extremes by Bruce Chatwin in his The Song Lines, and his view of the Australian Aboriginal world sung into existence).As Eli Wiesel comments:

    “Our lives are rooted in story. Our stories are our lives. We find out who we are by the stories we tell and are told. The lives we live and the conflicts we embrace are held together by motif and myth. If we are to gain a sense of who we are, where we stand in the world, what our relationship in and with the world is to be, then we must see how our story works. A story is a way to articulate what it is we are living through and how the world lives in us as we live in it … Stories give meaning to common and shared experience.” [Eli Wiesel, quoted in J. Elkins, “The quest for meaning: narrative accounts of legal education,” Jnl of Legal Education   v. 38 (Dec. ’88) p. 577-98]

  2. second, the process aspect:  the implication of the first point necessarily is that if stories are what people come with, this is the material we work with; and
  3. third, the socio-political, hermeneutic dimension, recognising that negotiations are part of the ongoing contraction of social meaning and, to crank this up a level or two, can form part of the kind of deliberative dialogue, civic conversations, democratic iterations, public reason . . . or whatever the preferred term, that writers like Habermas, Kingwell, Benhabib, Sen, and Appiah promote, with differing emphases and arguments, but with the same core idea of the essential, political and constructive role of dialogue. There’s a hoped-for dimension to this too – in that much of the underlying political concern is that there is a lack of civil and deliberative dialogue – so, in that sense, the job is to recover and reinvent the tools of collective narrative; and in this respect, the role of dispute resolution processes is not merely to work with existing narratives but also – more so? – to build that capacity for constructive dialogue.

If, then, people want to tell their stories – and it’s a conclusion amply sustained by the long story-telling traditions of surely every society and culture – then we can look in two directions to work with that material: one, is to look at the narratives people bring to current negotiations and mediations, as the material to work with; the other is to take that foundational resource and turn it to the optimistic and participatory goals that inform cosmopolitan (Beck, Appiah) and democratic (Benhabib, Habermas, Kingwell) writers.

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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’
– indigenous
– court-linked
– professional
– Western, Asian . . .

3. What agencies are engaged?
– professions (new turf wars?)
– courts
– 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
– settlement
– 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.
• efficiency
• 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.

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Having just returned to Singapore after a couple of months back in New Zealand, I have it in mind to research and write the comparative study of queuing behavior across cultures. An early experience of this came in Italy some years back (I think Bill Bryson has offered an opinion on the
Italian art of queuing by stealth) – and what appeared to be chaos in the butcher’s shop in Lucca actually turned out to be managed by very clear shared understandings and processes. All that was required was for us, as the most recent entrants into the shop, to ask who was – until now – last in line. And, while there was a great deal of milling around, all that the butchers needed to do was to ask who was next.

But . . . don’t try that in the Post Office. And the difference? In Lucca, there’s a shared, tightly understood set of norms; in the Post Office, the norm is competitive.

But what provokes this comment is my experience in a wonderful small general store, opposite the megastore Mustafa’s (their new, gleaming, stainless steel eyesore). I called into the packed jumble of provisions to get fruit, which turned into an expedition to pick up irresistible pickles, curry condiments etc. While there were three tills operating, there was no obvious (to me) queuing process. So I stood more or less in front of one of the tills, where there was only one person in front of me. There were other customers off to the side, but nowhere near the tills. The till operator caught my eye but gave no acknowledgement. But when the person in front of me moved off, the till operator called past me to one of the people standing off to the side. Aha! There was a system.

Interestingly, and unlike in NZ, no-one pointed out to me that I was pushing in on the line. It was assumed – in a high-context culture way – that I’d pick up the message. And no doubt once I moved off to nonchalantly buy more items and return to the back of the queue, there were nods of approval, even if not obvious to me.

I like that.

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The follow-up to the IMI’s posting of draft criteria on intercultural competence in mediation has been generous and insightful – and no doubt much of what has been suggested will make its way into modifications of the criteria.

But even without an awareness of the theories about cultural difference, there are those who come up with disarmingly simple guides to good practice. Here’s an example. A couple of weeks ago I was sitting in my hairdresser’s chair, getting the usual trim, and of course all around were people who couldn’t be separated from their mobile phones (it’s also interesting to observe, on a Saturday morning, the number of Chinese gentlemen of a certain age who are getting the grey covered up – which explains why I’ve seen so few men with silver hair, except for those to whom it lends the right degree of gravitas). Anyway, one gentleman – I assume a real estate agent from the anything-but-private phone call – asked his interlocutor one very simple and gracious question: “How may I address you?

This is relevant in light of IMI criteria dealing with understanding hierarchies, power distance and so on. It’s also relevant to the concern raised by my students going to Paris for the ICC’s mediation competition, that it seemed to them that people were using first names in mediation sessions, and this is not something they’d comfortably do. In the event, there was a mixed bag of strategies from mediators, despite what I understood to have been their briefing, and most assumed that the mediation norm would be the informal style. One or two indicated that mediation was typically informal but gave participants – students from a wide range of countries – a choice of forms of address. But in the context of a competition like this , there remained a degree of uncertainty and asymmetry in forms of address.

So, the question by the real estate agent is as good as it gets. And far more nuanced, for example, than the uninvited convention in cold-calling salespeople in New Zealand, who assume from the outset that first names can and will be used. And in terms of the criteria for intercultural competence, this is just a simple practice of inquiry about the other person’s preferences.

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The Inter-Cultural Taskforce of the IMI Independent Standards Commission
(ISC) <http://imimediation.org/intercultural-taskforce> , after a year of
meetings and consultation, is publishing  for comment Draft Criteria for the
planned IMI Inter-Cultural Competency Certification of Mediators.

Organisations approved by the ISC as an Inter-Cultural Qualifying Assessment
Program (ICQAP) will assess mediators for their mastery of inter-cultural
dynamics and qualify mediators for IMI Inter-Cultural Certification. The
launch of this new initiative is planned for late 2011 following a public
consultation period and testing of the criteria in a pilot program.

This initiative has attracted much interest and support from users,
mediators, trainers and providers and will be presented at the Annual Spring
Conference of the ABA Section of Dispute Resolution in Denver in April 2011.

Comments on the criteria are invited by April 30, 2011 and can be sent to
intercultural@IMImediation.org. All comments received will be greatly
appreciated and individually acknowledged.

To read the draft Criteria, click here

<http://imimediation.org/intercultural-certification-criteria> To download
the draft Criteria in PDF, click here

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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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