Thoughts and Observations of a Toronto Mediator About Culture and Conflict

Based on my research and my experience, it seems to me that cultural influences can bear significantly on the topic of conflict resolution.  I am not sure that mediators are typically sensitive to this point.

Certainly, generalizations concerning the manner in which an individual is likely to behave based on any particular culture with which that individual is affiliated will be problematic.  That would be true even if, for example, a mediator was completely familiar with a particular party‘s predominant culture.

Firstly, even members of a clearly defined culture may not behave in a manner that is consist with the type of behaviour that might ordinarily be expected from members of that culture.

Secondly, any attempt by a mediator to analyze how a party is likely to view a conflict or behave in the context of an effort at conflict resolution will itself be coloured by mediator’s own cultural affiliations.  That will be true whether or not the mediator identifies himself as a member of the same cultural group as the party.

Nevertheless, it would be an error for a mediator to ignore cultural influences on parties.  While there will always be a risk of stereotyping a party, there is ample evidence in the literature of relatively common traits that can be identified in connection with various cultural groups.  In my view, it would be a mistake to ignore the evidence that exists.

To illustrate the point using a fairly superficial example, and based on my own experience, we can look briefly at the way in which people approach bargaining.  Bargaining, of course, is a fundamental part of conflict resolution – certainly in the vast majority of mandatory mediations in our jurisdiction.  People from different cultural backgrounds will exhibit a different level of comfort with the bargaining process itself.  In Western culture, for example, in my experience, parties tend to be highly bottom-line oriented. They may find the bargaining process itself to be somewhat frustrating and see it both as a necessary evil and is something to be expedited to the extent possible. They are not particularly used to it and appear to have no desire to become used to it. After all, a consumer in a Western country will go into a store to buy an item off the shelf and, if the price is acceptable, pay the price at the checkout counter without further ado. Typically, the consumer will have no interest in bargaining with respect to that product.

However, in other cultures, the bargaining process is seen completely differently.  In the Middle East, for example, it is perfectly understood that in many marketplaces, no consumer buys a product at the price initially articulated by the vendor.  It is understood that the quoted price is nothing more than an invitation to negotiate.  People from such cultures, therefore, experience bargaining on a daily basis.  They appear to me to be entirely comfortable with the bargaining process and, whether or not they enjoy it, they accept it as a necessary and routine part of life.  While the bottom line remains critical, they may well exhibit a higher level of patience and tenacity than their Western counterparts in terms of getting there.

In my view, one of the factors most fundamental to the question of conflict resolution is that described in the literature as high and low context.  This is the distinction between cultures which emphasize protocol and promote subtle and indirect communication as opposed to direct “get to the point” communication.  This is a key factor simply because it impacts directly on communications between the parties and between each party and the mediator. In Asian cultures, for example, the research indicates that indirect communications are favoured.  Messages are embedded in the implicitly shared and cultural knowledge of members of the group.  Non-verbal communications are as important if not more important than verbal communications.  In the literature, Asian cultures are considered high context.

In a low context culture such as that of the United States, communications and meanings are more literal and direct. Additionally, members of Western cultures seem to be better able to separate the people involved in disputes from the conflict issue itself.

A high context approach to conflict is oriented towards cooperation and problem solving.  A low context approach is more competitive and self-serving. The relevance of these distinctions for the negotiating process involved in a mediation is obvious.  It follows that the greater the sensitivity on the part of each party to the approach dictated, at least as a generalization, by the opposite party’s cultural membership, and the greater each party’s sensitivity to the cultural norms influencing the opposing party, the greater the chances of a successful resolution to the conflict.

The goal for the mediator and any legal counsel genuinely interested in resolution should be to address these cultural influences with the parties so as to raise each party’s consciousness and expedite each party’s progress along a continuum of what has been referred to as stages of the acceptance of cultural differences.  The literature suggests that four such stages exist:

  1. a disinclination to acknowledge the existence of other or competing groups;
  2. regarding the other group as inferior in some manner;
  3. trivializing the differences between the party’s own group and the opposing party’s group;
  4. shifting from a state of being group-centered to a state of being group-relative, in which a party sees differences not as right or wrong, or good or bad, and ceases to see his or her own group as the reality against which all else must be measured and judged. At this stage, differences are accepted and at least understood if not valued.

In my view, this is the essence of what a mediator must strive for in a mediation involving parties of markedly different cultural backgrounds:  sensitivity, understanding and the willingness to move parties along this spectrum to a point in which the opposing party is no longer demonized or disregarded, and the possibility of an empathetic response begins to emerge.

Some Thoughts and Observations By a Toronto Mediator – Part 2

In this post, once again, I thought I would provide some additional observations on an aspect of the mediation process.  This post will comment on the relationship between neuroscience and conflict.

There are a number of studies in the booming area of neuroscience that focus on how the human brain relates to conflict and specifically on how male and female brains differ in that connection.  For example, psychologically, females are usually thought to be superior in inter-personal sensitivity than males.  That is a factor that is highly relevant to the issue of empathy, a critical element in the mediation context.

The entire issue of neuroscience is attractive because it deals with physical phenomena.  It produces pictures of brain activity which may suggest universal behavioural features.  In turn, this might enable mediators, counsel and parties to better understand decision-making processes and predict responses which people of a given gender, for example, may exhibit.

In my view, this type of study is particularly valuable to pick up where a mere economic analysis leaves off.  Economics gives us expected value calculations and litigation risk analysis.  It is based on the theory that decisions are made by rational people, who will act in a rational and logical manner in all circumstances.

Anyone with any life experience at all knows that this is simply not the case.  Firstly, people do not act on a rational basis in every case and every time.  Secondly, even where a party strives for rationality, what is rational behaviour to one person will not be rational to another.  Put another way, many if not most decisions are capable of more than one approach which may appear to be rational to some but not to others.  Variables in this connection likely include both culture and gender.  They will also include neuroscientific considerations.

For example, according to neuroscience, people speak in a universal emotional language.  The entire theory behind parties to a mediation gathering in a room and delivering opening statements is probably based on, or at least supported by, the theory of mirror neurons.  The assumption is that people are hardwired for empathy which, as we now know, probably varies with gender. Taken at face value, this may suggest that as a practical matter, the extent to which mediators should permit parties to engage in face-to-face discussion may be influenced by whether or not one or both is male or female.

Unfortunately, the literature is not at all consistent in this area.  Perhaps this is not surprising given the relative infancy of this area of study.  For example, one author suggests that the ability to interpret facial expressions is unconnected with culture.  On the other hand, there is evidence that suggests that the manner in which people perceive the facial expressions of others will indeed differ across cultures.

There is even controversy in the literature as to what mediators ought to do with this type of information.  There are those who consider face-to-face discussion to be important to any party interested in convincing the opposing party of his or her sincerity.  On the other hand, others consider face-to-face discussion to be highly problematic, at least in instances in which there is a perceived power imbalance between the parties.

While these nuances may be controversial, however, there appears to be solid evidence from neuroscientific studies as to the manner in which the brain reacts to emotionally charged issues such as those typical of conflict and efforts to resolve conflict.

For example, while it is normal and natural for a party to a legal dispute to feel angry, it would appear clear that such feelings represent an obstacle to settlement at least in the sense that angry people are less likely to make decisions in their own best interests.

Feelings of anger generally begin with a triggering event which causes a party to assess the relevance of a given situation to his own aspirations and the likelihood of achieving his own goals.  The party will then focus on who is to blame for the problem and assess whether or not the person will be able to cope with the situation as well as the likelihood that the situation will improve.  In the meantime, however, the party dealing with feelings of anger will be subject to an excessive amount of adrenaline produced in the brain.  This hormone is produced by the adrenal glands when the body is in a state of high anxiety, fear or excitement.  While it enhances alertness, and while neuroscience teaches us that emotion of this nature is an integral part of reason and the decision-making process, anger will affect cognitive processing and interfere with the ability to solve complex problems.  It has even been suggested that regardless of personal levels of intelligence, during anger arousal, people perform generally as if they have a learning disability.  Even subtle forms of anger impair problem-solving and general performance.  In addition to increasing error rates, anger narrows mental focus, obscuring alternative perspectives.

The angry person has one “right way” of doing things, which, if selected in anger, is seldom the best way.

Neuroscience tells us that this limitation to a person’s access to rational cognitive functions will arise whenever a person is under stress or threat or feels shame.  On the other hand, when the body senses safety, the nervous system becomes receptive to new information.  This suggests that there is a need for mediators, counsel and parties to be aware of physical dynamics in order to reduce a party’s perception of threat and thereby increase the chances of a successful resolution.