Articles and Book Reviews by Judge Josefina Rendón
An experienced Houston mediator recently complained about a divorce mediation that ended in an impasse. At best the husband had been too stubborn. At worst the husband had purposely and successfully sabotaged the mediation. She suspected the latter.
The mediator had conducted the mediation as well as she had hundreds of others. This included explaining the process and telling them they both would have the chance to speak through uninterrupted statements and two-way exchange. She explained clarification and listing of issues, taking one issue at a time and generating options. On a flip chart she clearly listed and separated the child custody issue from property and other issues.
Nothing worked. The husband was very difficult and would not stick to any one subject. He jumped from one to another totally unrelated issue and back again without resolving any. He was also loud and, at times, interrupted both his wife and the mediator. The exasperated mediator finally declared an impasse and that particular mediation went into her professional annals as one of her most difficult mediations.
We have all had our "mediation from hell" where the chemistry or the circumstances went wrong and the mediation ended in an impasse. Some mediators would classify that as an unsuccessful mediation, others would more comfortably say that they gave it their best and that the impasse resulted, not from their lack of skills, but from the parties' inability or unwillingness to agree. There are times, however, when it is in fact the mediator who lacks the necessary information and communication tools to help the parties reach a resolution.
Discovering "What Makes People Tick"
As mediators we have learned that disputes are often more people-problems than legal-problems and that if, rather than listening only to their positions, we search for the underlying interests, wants, values, and needs, we will more easily reach the heart of the matter that needs to be resolved. We have discovered that by learning more about human nature, we are able to understand people's motives better and in turn better motivate them towards an agreement or towards positive change.
Consequently, many styles of mediation have focused on "what makes people tick". A great number of mediators has long recognized that the parties in a mediation have certain values, needs and wants that should be addressed before the conflict can be resolved. In light of that recognition, some third party neutrals have explored people's personality types, how these types affect mediations and, how a mediator can use this knowledge of different personalities to move the parties towards resolution.
Others have explored ways of recognizing people's learning styles, whether visual, auditory or kinetic, and have developed vocabulary that will more closely evoke a person's learning style in order to get through to that person. (1) Also recognizing the power of language, other mediators have developed a method of using specific metaphors during a mediation to set the tone and to influence the parties into thinking in that same mode. (2)
Yet, other mediators believe that the mediator, rather than focusing on an agreement, should be aware of people's intuitive response to conflict as one of confusion, weakness and self-absorption. These mediators concentrate on transformative opportunities for the parties' empowerment and mutual recognition. (3)
Finally, other researchers have discovered that a person's cultural background is a strong, though sometimes invisible, factor that permeates the whole process of mediation and that should be explored and addressed in order to effectively communicate with the parties in mediation.
The Importance of Diversity Awareness
Left unrecognized, cultural differences can profoundly affect a mediation's outcome and potentially lead towards failure from the outset. As a result, mediating without some cultural diversity competence, may result in substandard mediation services.(4) One author has even suggested that mediating while lacking cultural diversity competence borders on the unethical. (5) On the other hand, once the mediator recognizes cultural differences and learns how to address them, a completely new and bigger tool box becomes available to the mediator.
The same experienced mediator discussed earlier took training on cultural diversity in mediation weeks after her difficult mediation. It was an eye opener. She discovered that many people from other cultures differ from Americans in their orientation towards issues and activities through time. She learned that, while most American mediators prefer to deal with issues one at a time, sequentially; (6) others take a global approach and try to resolve the issues through a more integrative manner. (7)
Our experienced mediator also found out that, in some cultures, interrupting others is not rude but expected. Interruption often means attention and participation in the conversation rather than rudeness. Interruption is in some cultures a type of "active listening" and quiet passive listening may be a sign of lack of interest or attention. Our mediator also learned that there are cultural differences in styles of communication, some being much more expressive or affective than others. She learned that, what may seem as aggressive, warlike words, may not be intended as such by someone from a more expressive culture.(8)
The mediator also found out that different people also have contrasting views on the application of rules to themselves and others. Universalists, for example, believe that rules should be applied uniformly while particularists believe rules should be applied according to the circumstances and people involved. A person's universalist or particularist orientation may affect not only how closely they follow the ground rules of mediation but also what importance they give to the details and specificity of the final agreement.
In short, what seemed to this mediator to be stubborn, bad faith behavior may have been normal, "good faith" behavior on the husband's part. She realized that her own cultural orientations differed from the parties and affected the process of mediation. Had she been aware of these genuine differences and had she possessed the tools to deal with them, the outcome might have been very different.
What Is Culture?
Culture has been defined as a set of values, norms and standard practices commonly used by a group. It has been explained as "a pattern of living that is internally approved and sanctioned" in response to a number of common everyday problems faced by human beings. It can be basically defined as the way we were brought up and taught to deal with those everyday situations we all face as human beings.(9)
In this article we will discuss only three cultural differences that can affect the communication among the participants in a mediation: communication styles, time orientation and application of rules.
We proceed with three caveats. First, these are only three of many cultural differences that can affect a mediation. Among others, are the differences in people's methods of communication (such as direct vs. indirect and low-context vs. high-context communication; their view of themselves in relation to others (individualist vs. collectivist); and their view of themselves in relation to the environment (control, harmony, constraint). Second, these differences are treated separately here for the purpose of analysis but in reality are intertwined and interrelated. Finally, these differences are described in extremes for the purpose of illustration and brevity while, in reality, they are part of a continuum. No culture, no one person, is clearly one extreme or another but, in their everyday situational encounters, people tend to prefer or lean towards one or another side of the spectrum. These orientations can still have profound effects in a mediation.
Expressive vs. Restrained Communication -People closer to the expressive or affective extreme of the spectrum tend to show their emotions more freely and transparently. They tend to be more dramatic in their speech and this may seem exaggerated or situationally inappropriate to those in the more restrained side of the spectrum. These people let emotions flow freely and at times may show an explosion of emotion (e.g. anger or sadness) that may seem worse than intended and that, in the case of anger, may scare others into expecting violence even when not so intended.(11) People from predominantly expressive cultures touch often, maintain long intense eye contact and feel comfortable with those who maintain the same tactile and visual demeanor. In fact they may distrust those who do not look at them "in the eye" or who respond uncomfortably to their touch.
On the other hand, people towards the restrained or neutral extreme tend to be more "poker faced". Their speech, rather than fluid and dramatic, is more monotonic. They are uncomfortable with too much touching or intense eye contact. Though they may feel just as emotional or tense, these people tend to hide these emotions. They generally value stoicism in others and think little of those who are openly emotional.
What this means to the mediator- A mediator dealing with expressive parties should remember that they may correlate the mediator's honesty and trustworthiness by how comfortable he/she is with touching, eye contact and expression of emotion. On the other hand, a predominantly neutral party may perceive too much touching, eye contact and expressiveness as unprofessional behavior.
Time Movement (12)
Single-focus vs. Multi-focus - Single-focus cultures view time in sliceable chunks of hours, minutes and seconds that can be planned and scheduled. People from these cultures tend to plan meetings such as mediation in a more focused manner. They generally want to "get down to the business at hand," would mediate linearly, one step at a time, and deal with the issues in the same focused manner.
Multi-focus people, on the other hand, view time as flowing and unsliceable. They tend to focus on several tasks at once and to see the issues, including the interpersonal dynamics of the mediation, as interrelated. To them, holding more than one conversation at a time is appropriate and normal. Agreements on any specific issues would be considered tentative and contingent on the satisfactory handling of all interrelated issues.
What this means to the mediator - Single-focus people generally prefer, and respond better to, a mediator who handles tasks linearly, one at a time. Multi-focus people on the other hand prefer a mediator who treats the issues as interrelated and who accepts a multi-leveled or circular treatment of the issues.
Application Of Rules To Self & Others (13)
Universal vs. particular application of rules -Universalists prefer an orderly world of reliable rules to guide them. Faced with the moral dilemma of disclosing a friend's illegal or unethical act, a universalist would generally follow the law or ethical guidelines while the particularist would protect the friend. Rather than preferring for the uniform application of the rules, the particularist is more concerned about the strength of the relationship and the flexibility of the circumstances. Either decision could be the "correct" moral decision depending on the person's cultural orientation and upbringing.
What this means to the mediator - The more universalist a person is, the more closely he/she will follow the ground rules in a mediation, while the opposite is true for a particularist. Concerning a final agreement, universalists generally prefer written specificity and detail, while particularists prefer general agreements that lack details and are open to whatever the specific relationships and/or change in circumstances may bring. The mediator may want to emphasize consistency or flexibility throughout the mediation depending on the universalist or particularist orientations of the participants.
Awareness of cultural diversity is an important tool for a mediator in helping parties feel comfortable, trust the process, and work towards resolution. The mediator should remember that all of us are culturally unique and differ in how we solve the problems we face in everyday life and mediation.
Perhaps the first step in implementing cultural awareness changes is for the mediator to be aware of his/her own uniqueness in terms of, among others, expression of emotion, body language, style of communication, importance given to the guidelines and/or structure of mediation, and comfort with conflict. The mediator should be aware of how his/her own behavior can affect the participants' interaction in mediation.
If someone responds in a seemingly inappropriate manner, it would behoove the mediator to search for possible culturally laden explanations before assuming bad faith.
The mediator should help create, if possible, a climate in which that person can be productive, comfortable and involved. Mediating with the culturally diverse requires patience, open-mindedness, the ability to question your own values and behavior, and a good imagination.
Josefina Rendón is a 1976 graduate of the University of Houston Law Center. She has been a mediator since 1993 for, among others, the U. S. Postal Service, Equal Employment Opportunity Commission, Texas Education Agency, Department of Justice Civil Rights Section, U.S. Department of Agriculture, Harris County Dispute Resolution Center & Houston's Better Business Bureau.