Paper presented by Allan Barsky, LLB, MSW, PhD
Associate Professor, Faculty of Social Work
University of Calgary, Calgary, Canada T2N 1N4
barsky@acs.ucalgary.ca

The fiftieth anniversary of the State of Israel has been marked by the launching of two very significant developments in conflict resolution: first, Supreme Court President Barak and the Ministry of Justice pronounced the establishment of the National Center of Mediation and Conflict Resolution; second, Bar Ilan University kicked off its Program in Conflict Resolution with a Conference on Negotiation and Mediation. The simultaneous beginnings of these initiatives, one a service program and one an academic program, provide a fantastic opportunity to combine theory, practice, and research.

Perhaps there is no greater need for practitioners, policy makers, and academics to work together than in the area of community mediation. In spite of Israel's great accomplishments over the last half-century, there remain many divisions in this society, between Arabs and Jews, between rich and poor, between religious and secular, and between other groups who come from different cultural backgrounds. In addition, the court system has a backlog of cases and Israeli society is challenging America's claim to being the most litigious nation. High levels of stress also contribute to conflictual relations between people.

Advocates of mediation say that mediation can address each of these issues: diverting cases from court, building bridges between communities, and transforming society into a more tolerant, understanding people (Bush & Folger, 1994). In spite of the accolades and rapid growth of mediation in North America since the 1970s, mediation is not a panacea for all of society's problems. In particular, the dominant models of community mediation are geared towards people from European and American middle class cultures.

In the following section, I provide a brief description of the predominant model of community mediation. The balance of the paper deals with issues related to using mediation with people from diverse cultural backgrounds. I focus on community mediation; that is, mediation between private individuals or groups in the community. Community mediation does not include family law issues, commercial disputes, labour relations, or international disputes. Community mediation services are sometimes called neighborhood justice centers. Community mediators may receive referrals from disputants, from helping professionals, or from the court system (particularly, small claims issues and juvenile justice).

The Predominant Model of Community Mediation

The predominant model of community mediation is a process where an impartial third party (the mediator) facilitates communication between conflicting parties and engages them in a joint problem-solving process. The mediator guides the parties through a series of stages: Preparation, Orientation to Mediation, Issue Definition, Exploring Interests and Needs, Negotiation and Problem Solving, Finalizing an Agreement, and Follow-up. The process is linear (Kaminsky & Yellott).

Most mediators rely on the interest-based model of negotiation and mediation (Fisher, Ury & Patton, 1991). Mediators move parties away from positions to underlying interests. For example, a dispute between two neighbours may originally be presented as follows:

Yona complains that Amos is playing loud music Friday nights, disturbing Yona's Shabbat. Amos says he needs Friday nights to practice. Music is his livelihood.

Yona's position is that Amos should not be able to play music on Shabbat. Amos' position is that he should be able to play whenever he wants. If the conflict comes down to who is right, then the solution becomes a choice of freedom to play or keeping the Sabbath. Whichever decision prevails, one party will come away happy and one, well, not so happy. This is called a win-lose process, typical of a court trial or adversarial process.

Instead, the mediator has the parties look at the interests underlying their positions: Yona wants to be able to observe Shabbat in peace; Amos wants to be able to practice. This opens them up to more creative solutions, where both of them can come away satisfied: for example, Yona could spend Shabbat at her friend's home; Amos could install insulation to prevent sound from going into Yona's apartment; Yona could hire Amos for a different job; one of them could move to a new apartment. The process is designed to bring the parties to an agreement that works well for both of them, a win-win solution.

Another aspect of interest-based negotiation is to separate the people from the problem (Fisher, Ury, & Patton, 1991). During the conflict, Amos calls Yona a religious fanatic. Yona calls Amos an inconsiderate, loud-mouthed goy. The mediator helps them separate the people from the problem by having them agree to ground rules about name-calling and by having them focus on their mutual problem, not their like or dislike of one another.

Cross-cultural Concerns

Culture can be defined as "A learned system of values, beliefs and/or norms among a group of people" (Greey, 1994). Broadly defined culture includes ethnic background, nationality, gender, disability, race , sexual orientation, and religion. Culture affects language, behaviors, and preferred conflict styles (e.g., avoiding, accommodating, compromising, collaborating, or competing). While the predominant model of mediation can be applied with people from different cultures, this model makes a number of assumptions that may not hold true for cross-cultural mediation.

One of the key assumptions of the predominant model of mediation is that the mediator is neutral and impartial. Neutrality is said to be important so that mediation participants will not be biased. However, what does neutrality mean when the participants come from a different background than the mediator. In the case example above, one mediator is religious, the other secular. A mediator who is religious may be viewed with skepticism by the Amos, the non-religious party. Similarly, a mediator who is not religious may not be acceptable to Yona. One alternative is to use co-mediators, one religious and one not. However, this may be admitting that a single mediator cannot be neutral. Another alternative is to use a single mediator, whether religious or not, who meets with both parties ahead of time and tries to establish neutrality with both parties: i.e., demonstrating that a mediator can be neutral in spite of coming from a different background than one of the parties.

If both parties came from the same ethnic group, they may decide that they want a mediator from their own background and may not be concerned about neutrality. For example, if the conflictants are both Orthodox, they might ask an Orthodox rabbi to mediate their dispute: the rabbi would be able to invoke values and principles from Halacha (Jewish law) since both parties say that they believe in Halacha. If the third party invokes religious principles, is this still mediation? If the rabbi uses skills of mediation to help the parties come to an agreement, then the process looks like mediation. If the rabbi simply imposes religious principles on the parties, making the decision for them, then it is not mediation. The question may be where to draw the line.

Another cultural issue is that the predominant model of mediation is a rational and linear decision-making process. The mediator guides the parties through a fixed series of problem-solving stages. While this model works well for some groups in society, other groups tend to operate best with different patterns of communication: for example, circular thinking or passionate discussions (LeBaron, 1997; Lederach, 1986). To ask people from such backgrounds to talk about only one issue at a time or to speak without emotions contradicts their traditional patterns of interaction and conflict resolution.

The traditional model of conflict resolution is also problematic because it asks people to separate the people from the problem. In many cross-cultural conflicts, people and problems are deeply intertwined. One cannot separate them. For some groups, harmony is highly valued; they cannot have a conflict with others and still maintain a positive relationship (Duryea, 1993). The difference must be resolved in order to reconcile the relationship. Another problem with separating the person from the problem is that many cross-cultural disputes are identity-based conflicts; that is, each party sees the other through the prejudices, myths, and biases of his or her cultural group (Rothman, 1997). In order to resolve identity-based conflicts, mediation needs to confront the people problems as well as the substantive ones.

Finally, the predominant model of mediation assumes a relatively equal balance of power between the parties. This may or may not hold true in cross-cultural conflicts. Significant power imbalances may exist, particularly between people from minority and majority groups in society. The more powerful party may have greater influence because of greater financial resources, better negotiation skills, better language skills, etc. If the mediator tries to re-balance power in favour of the weaker party, the stronger party may object: how can the mediator redistribute power and still be neutral?

Possible Solutions

Before applying mediation in cross-cultural conflict situations, mediators need to consider the assumptions underlying their model of mediation. Essentially, there are three possible responses: (1) apply one's generic model of mediation, but try to be sensitive to cultural issues; (2) adapt one's model to better meet the needs of the parties, given their cultural backgrounds; and (3) develop new conflict resolution models grounded in the traditional norms and practices of the groups you are mediating (Lederach, 1986).

The first response, cultural sensitivity, preserves the main elements of the interest-based mediation process. The mediator, however, needs to become aware of cultural factors and how they affect the mediation process. For example, eye contact varies in different cultures: in some culture, giving direct eye contact is a sign of respect; in others, it is offensive. The mediator can adjust eye contact accordingly. Similarly, the mediator tries to be sensitive to the participants' values, beliefs, and other norms of communication. The mediator may also use cultural interpreters in order to learn more about the culture (Barsky, Este & Collins, 1996; Freshman, 1998). The adjustments to the process are minimal in comparison to the other two approaches.

In the second approach, adapt a model, the mediator starts with the generic model of mediation and makes certain changes to accommodate the culture of the parties. If the conflictants are not used to having formal meetings in the offices of professionals, for instance, the mediator might establish a model where the meetings are less formal and take place in the homes of the parties. If the parties tend to be very expressive with emotions, the mediator will allow more time for expression of feeling and de-emphasize rational decision-making techniques.

The final model is an elicitive approach. Rather than impose a generic model on people from all cultures, the conflict resolution provider (CRP) first learns about the culture, including its methods for dealing with conflict. The CRP works with people from the culture to support existing methods of conflict resolution or to create new models that build on existing strengths in the culture. The CRP can act as a consultant to the cultural community. For instance, if rabbis or other clergy have a conflict resolution role within a community, the CRP can teach these clergy conflict resolution skills that they can use when people approach them. Alternatively, the CRP can provide conflict resolution services using a model of intervention designed specifically for the culture. The interest-based approach is base on satisfying the interests of the individuals; if the parties come from a communitarian culture, then the new model could focus on satisfying the needs of the community. The model of intervention may look more like community development work (Campfens, 1997) than clinical mediation.

Although creating ethnospecific models sounds attractive, the elicitive approach requires significant investment in time. Some of the more successful attempts at drawing upon traditional conflict resolution approaches include Ho'opono pono among native Hawaiians, circling processes among native North Americans, and family group conferencing among the Maury of New Zealand. Although I have not seen literature on the process, I understand that there have also been attempts at supporting traditional Sulha processes in Arab communities.

When community mediation was popularized in North America during the 1970s, most mediators assumed that one model of mediation worked for all people. Cross-cultural issues have been receiving greater attention in the last 15 years. As Israel embarks on new research and service projects in conflict resolution, it can learn from the experiences abroad. Given the diverse nature of the population in Israel, the mediation community in Israel will soon have much to teach other countries about how to handle cross-cultural issues.

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