WHAT IS CULTURAL DIVERSITY AND HOW DOES IT AFFECT MEDIATION?

At Florida Mediation & Arbitration, all of our panel mediators have varying and unique experiences in cultural diversity. It is a term that traditionally invokes a limited range of focus.

While many mediators have a sense for what the term “cultural diversity” means, usually they ascribe a definition based on the generic definition or concept of differences derived from race, religion, gender, age, ethnicity or sexual orientation. Yet, the traditional definition of cultural diversity tends to ignore or not properly account for the implications of: immigration status, socio-economic and marital status, acceptance of mainstream life partner relationships including social families (i.e, families of same sex partners, who have adopted children), work experiences (blue collar/white collar, unemployed/underemployed), education, group memberships (NRA, ADL, Sierra Club, Greenpeace, ACLU, Tea Party Movement), political affiliations, parenthood, existence of disability or disadvantaged or other significant life experiences, as they too can be categorized as cultural diverse relative to the opposing party, their attorneys, and yes, even the mediator.

In cannot be ignored that in mediation, parties and other stakeholders (attorneys, corporate representatives, etc, and yes, even the mediator) come to mediation with their own cultural experiences which can, if not recognized influence the relative importance of the underlying issues. Often, the emotional aspects in mediation such as love, anger, fear or grief and their rationale processing become blurred, as they are processed by each individual through their cultural perspective.

In the end, cultural diversity is best addressed utilizing good instincts, developing trust, and providing leadership while having a good understanding of the cultural biases which each party has, emits or is PERCEIVED to have. The underlying awareness of cultural diversity is an important tool for a mediator in helping parties feel comfortable, engage in the process, and gravitate to a resolution of the dispute. A good mediator will always remember that all participants are culturally unique leading to different problem solving methodologies. This is true even with participants who seem to be culturally parallel. But social factors (i.e., Tea Party affiliation, for example) can mask ingrained thought process. Succinctly stated, “no longer can we judge a book by its’ cover.”

This is especially true in South Florida, where participants have through assimilation, social bonding and integration intertwined different aspects of cultures they are exposed to.

WHAT IS A MEDIATOR TO DO?

First the mediator must check his biases at the door, The mediator should be aware of how his/her own behavior can affect the participants’ interaction in mediation, including taking an inventory of how his or her uniqueness in expressing verbal and non verbal communication can affect the process. Additionally, the mediator should be careful to not permit the participants to “judge the book by its’ cover”. Everyone although different is the same. For instance, recently I was involved in a dispute between a Palestinian and Jewish businessmen. It turned out, the Jewish participant could not find Israel on a map, while the Palestinian was aware of its’ history, geography and cultural significance—he even spoke flawless Hebrew. In the end, he charmed the pants off his then adversary who ASSUMED because the other side was Palestinian, he was anti-Jewish. It could not have been farther from the truth. Not only was the dispute resolved, but I understand they are friends. A valuable lesson was learned.

As a Cuban and Jew, in South Florida I face these culture clashes often. I have learned not to Judge the book by its cover, and to have radar for subtle signs of cultural static—that is, the misperception of culture cluttering the rationale thought process. Sometimes cultural bias are subtle—sometimes not, resulting at times in incendiary misconceptions As a result, If someone acts or responds in what seems to be an inappropriate manner, it is incumbent on the mediator to search for the true reason and possible vet out a culturally laden explanations before assuming bad faith.

The mediator must create and foster an atmosphere that is productive, comfortable, evidences the mediator’s control of the process patience, open-mindedness, invocation of a barometer for value and cultural based behavior and as always, utilization of a good imagination!

At Florida Mediation & Arbitration, we have developed techniques which are always a good starting point for vetting out culturally induced static in mediation, such as:

  • 1. Not assuming that all disputes that involve people of different cultures have a cultural component.
  • 2. Always provide a thorough explanation of the dispute resolution process by never assuming that what you are saying is being understood. Sometimes separate caucuses are required for this to be effective
  • 3. If feasible, draft documents or at least have the documents read to the participant in their native language.
  • 4. When appropriate, conduct the mediation in the party’s native language. As a Cuban, I often conduct the entire mediation in Spanish. If that is not practical, allow for, the use of interpreters who should be required to sign confidentiality agreements.
  • 5. Always respect and encourage the participants to respect the other person’s point of view.7. Ask for frequent expansion on points that you are unfamiliar with, especially if they relate to cultural issues.
  • 6. Try to establish the cultural norms of the people that are involved in the dispute. It could be a matter of misunderstanding.
  • 7. Recognize and investigate the cultural differences in the use of body language, emotions and problem solving.
  • 8. Create opportunities for the parties to validate the concerns of each other. This includes the recognition and constructive expression of differences. Likewise, cultural similarities should be creatively sought out and highlighted.
  • 9. Discreetly educate those from other cultures on the values and norms of our society relevant to the dispute or the mediation process, so as to diminish the potential for culture clash.
  • 10. As the Mediator, be patient, flexible and understand that each mediation is a learning experience even for the mediator.
  • 11. Be creative. The term “thinking out of the box” even involves recognizing how things are done in the participant’s home country or predominant cultural sandbox and explaining how those beliefs can be better tailored to the norms in the mediation setting and facts involved.