Mediating Interpersonal and Small Group Conflict. Cheryl A. Picard
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officers, talk about the crime and appropriate reparation. They often evoke a sense of shame to show disapproval for the act (not the person) and a welcoming of the offender back into the community. Victim-offender programs are perhaps the best known and most widespread restorative justice initiatives. They allow victims to confront their offender about the harm done and offenders to take responsibility and make reparation for their actions in the presence of a skilled mediator. Three principles are said to form the basis of restorative justice: 1) crime is a violation of a relationship among victims, offenders, and the community; 2) restoration involves the victim, the offender, and community members; and 3) a consensus approach to justice.5
Conflict and Culture6
Recent research in the field of conflict studies has focused on the links between conflict and culture. Culture, in this instance, refers to race and ethnicity; although when broadly defined, it can include gender, age, socioeconomic status, sexual orientation, educational levels, and physical ability. Culture helps to create a system of meaning that must be understood in order to contextualize conflict, identify the parties involved in a conflict, determine how to approach and enter a conflict, and recognize how the conflict is best resolved. While culture alone does not determine individual behaviour in conflict, it does shape the ways in which conflict is viewed, discussed, and resolved (Avruch & Black 1993).
Culture provides a “lens” through which conflicts are perceived and interventions or reactions are developed. Issues that arise when cultural analyses are applied to conflict are varied. What constitutes a conflict is the starting point for a cultural understanding of conflict. While denial or avoidance of conflict seems to be common across all cultures, it is extreme in those cultures that privilege harmonious over conflictual conceptions of the world. Parties to a conflict can include those directly affected by events, as well as those indirectly affected. Cultures where individuals see themselves as members of groups, such as families, clans, or communities, tend to consider all members of their group when they assess the impact of conflict and its favoured outcome. Approaches to conflict and preferred intervention styles also vary depending upon the culture. Some cultures prefer direct and open confrontation, while others rely on third parties to delicately broach the subject of contention, without joint sessions, in order that both parties can save face. If intervention is preferred, who intervenes becomes a question. Should the intervenor be someone close to and knowledgeable about both parties, or a “neutral and impartial” stranger? In some cases, intervention may not be perceived as the best strategy since the conflict may improve over time without any attention. Finally, culture will influence whether a resolution is understood as fair and equitable. In addition, the formality of resolution will be shaped by its cultural context.
G. Hofstede (1980) has identified a spectrum of cultural differences for understanding workplace patterns of behaviour. This spectrum, modified here, is based on dimensions of differences that are specific to cultures, such as whether individualist-collectivist identities are evident; high-low tolerance for ambiguity, whether change is tolerated; high-low power distance, where hierarchies and traditions are either rigid or flexible; and masculine-feminine values, whether nurturing or assertive behaviours are common. These constructs are reflective of patterns for processing information and evaluating events within a cultural context.
When working in intercultural conflict resolution, several challenges face the intervenor. The first is establishing connections with the parties in dispute in order to enter the conflict. An intervenor must establish the trust and confidence of the parties. This can result in lengthy meetings to talk about the situation, where the conflict itself does not come up for discussion until many hours have passed and the party or parties have developed confidence in the intervenor. In the second instance, once trust is established, the intervenor needs to show some authority in her or his intervention. The parties in conflict need to believe that the intervenor can help influence the other party and assist in settlement. Thirdly, the intervenor must recognize the possible involvement of others not directly involved in the dispute and invite or encourage them to participate in its resolution. The fourth consideration for the intervenor might be the parties’ disinterest in face-to-face confrontation. The intervenor may be required to assist through a conciliation model, as opposed to a joint session of mediation. John Paul Lederach (1982) proposes that a more elicitive model of conflict intervention be developed in conjunction with the disputing parties. Instead of prescribing a particular model of conflict resolution for the parties, the intervenor might need to construct a new model, with the parties’ input, in order to assist in resolution. Finally, the intervenor should expect flexibility with respect to the formality of the agreement. Under no circumstances should a conflict intervenor expect a formal, written agreement. This may not be desired by the parties.
While intervening in conflict where cultural differences are evident, an interactive analysis of the conflict and an exploration of resolution methods must be undertaken with the parties to the conflict. Intervenors should expect differences and adopt flexible procedures.
1 This historical information was found in J. Porter and R, Taplin, Conflict and Conflict Resolution. New York: University of America Press, 1987.
2 See, for example, the work of the Civil Justice Review First Report. Ontario Court of Justice, 1995 and the Supplemental and Final Report. 1996; Hon. T.G. Zuber, Report of the Ontario Courts Inquiry. Ministry of the Attorney General, 1987; Report of the Canadian Bar Association Task Force on Alternative Dispute Resolution: A Canadian Perspective, 1989.
3 See R. V. Askov [1990] 2 S.C.R. 1199.
4 In June of 1997, the Ontario Ministry of the Attorney General proposed a new rule (Rule 78) to provide for the mandatory mediation of most civil actions and applications.
5 Taken from the Law Commision of Canada report “From Restorative Justice to Transformative Justice,” 1999.
6 With permission from R. Ramkay, Coordinator, Mediation Centre at Carleton University.
Chapter 2:
Mediation Theory
Mediation is an alternative dispute resolution process in which a third party helps the parties in dispute resolve the situation by coming to their own solutions. Mediation is not a new concept. However, a new surge of interest in its use has brought mediation to the fore of modern dispute resolution practice. Increasingly, mediation is being used in an array of social and legal venues. There are those who believe mediation presents a powerful opportunity to express and achieve a higher vision of human life. The more dominant approach, however, emphasizes mediation’s capacity for finding solutions that are expedient, less costly and more satisfying than formal adjudicative processes. Whichever perspective is taken, it is generally agreed that mediation is both diverse and pluralistic and that no one approach or ideology represents the “full story” of mediation. Recent thinking suggests a more integrated and inclusive view of mediation that would give equal weight to the importance of relationships, community, culture, resolution, and change.
History
The history of mediation is entwined with the core values of Canadian society, most notably justice, self-determination, and the acceptance of humans as rational, problem-solving beings. Rooted in social activistism, early proponents of mediation sought to assist individuals and groups to use non-violent and more effective problem-solving strategies, the hope being that informalism would return justice to the community. While mediation in labour disputes has been long used,7 it was not until the 1960’s that mediation realized wider acclaim in the realms of community, family, public policy, and legal contexts. Increasingly, mediators are being called upon to resolve disputes about child custody, contracts, environmental concerns, neighborhood problems, and playground bullying.
Mediation is one of the oldest and most common forms of conflict resolution.
Mediation is one of the oldest and most common forms of conflict resolution. Its current practice has evolved from that which existed in other countries and other