In Italy, mediation has been especially practiced, in recent decades, within the business setting as well as in the family context. Recourse to mediation within these fields has been encouraged by the length and ever increasing costs of court-related justice. Not to mention the fact that business and family mediation have also been promoted by recent legal decrees and bills (i.e. Bill n. 2503, June 10th 2009 and Legs. Decree n. 206, September 6 2005, just to mention a few).
In our country, however, cultural mediation has not yet gained so much public attention. This is probably due to the fact that mediation is still wrongly perceived as a form of compromise, rather than as an alternative way to do justice. Consequently, people fear that if applied to normative clashes, including those arising from cultural differences, mediation may end up promoting relativism and, above all, injustice. Yet the philosophy of cultural mediation is not identical to the «cultural defence» strategy, recently invoked abroad by some criminal-justice judges. According to its rationale, a man cannot be indicted for homicide, if he belongs to a culture where adultery is customarily punished with the wife’s slaughter. There is no point in judging cultural practices; rather cultural values and customs have to be promoted by all means and at all costs. And when cultural values do clash, as it often happens, the best way out to the impasse, is to find a compromise. So the «cultural defence» strategy argues.
Cultural mediation and cultural defence in fact rely on completely different anthropological, ethical and epistemic presuppositions.
First of all, their idea of the human being and of human culture are basically antagonistic. On one side of the spectrum, the human being is conceived – like in Aristotle – as a «political animal». On the other, he, or she, is rather conceived in Hobbesian terms as an individual striving for self-satisfaction, or as a subject totally embedded in parochial interests. Likewise, cultures are on the one hand perceived as dynamic entities, open to change and outside influences. On the other, they are envisioned more like closed and static systems.
Interestingly, both sides point to the same facts as proof of their own validity. The presence of cultural clashes and social conflicts, for example, is by the latter taken as a good evidence of the competitive nature of human beings, or of the incommensurability of cultures. Whereas they are conceived, by the former, as opportunities to exercise the ability of dialogue and the ability of self-reflection inherent in human nature.
Furthermore, cultural mediation rests on the premise that there are universal ethical principles, or ends, encompassing and transcending all cultures. Principles and ends, which although diversely contextualized across space and time, are the basis on which it may be possible to find alternative and creative solutions to the normative conflict at hand.
As it is well known, relativism – upon which the «cultural defence» strategy rests – believes instead that all values are context relative and that there is no objective standard of moral discernment. Their argument follows the line of the ancient sophists and of the same Herodotus, whom well exemplifies their thought by interpreting the existence of different funeral norms, at the time of King Dario, as a proof of ethical relativism.
But, as some scholars have already pointed out, the different, cannibalistic or cremating, practices of the Greeks and Egyptians living at the time of Dario, are just as much witness to the existence of a common principle encompassing both cultural norms – i.e. the principle of reverence for the dead – than they are of cultural diversity.
Finally, mediation is based on the epistemic conviction that the truth (be it metaphysical, moral, or juridical) is not known once and for all, but rather requires tuning and dialogue. Like two people standing on opposite sides of a mountain, see the same object from a totally different, but complementary, perspective, so does mediation believe that different cultural systems look at the same truth from different, but not mutually exclusive, angles. Its position is thus very different from relativism, which believes that anything goes and that different cultures should only strive for compromise.
In practice, cultural mediation leads to mutually satisfactory solutions, which are at the same time in accord and reached by means of transcendent, normative principles. On the other hand, compromise leads only to partial accommodation of the respective stances, which leaves no one really satisfied. This is, for example what happens, at the interpersonal level, when a couple of friends or spouses discusses which movie to go to and comes up with the so-called «tit-for-tat» solution: one time they agree to go see the movie of Mark’s choice, the other time they go see Anne’s favourite movie. But neither Mark nor Anne feel at the same time and all the time satisfied. In mediation, the opposite happens. In fact, the same couple may find out that – despite their different likes for film westerns and action movies – they also share something in common: for example, their passion for thrillers. Thus they decide to go watch Agatha Christie: an option they had not thought of, at the beginning, but one which they both like.
In Italy, a culturally mediated solution had been advanced some years ago, by doctor Abdulcadir of Somali origin. Having witnessed the physical and psychological harms which some women are subject to via the most invasive forms of genital mutilation, doctor Abdulcadir alternatively proposed to substitute these tribal practices with a less gruesome and merely symbolic ritual (very much like male circumcision). This way, he believed it was possible to recognize the need of cultural belongingness of these women, whilst at the same time preserving their physical and psychological integrity, protected by our Constitution. Unfortunately, his proposal was turned down by the legislator and all forms of female genital circumcision, or mutilation, are now considered a crime in Italy.
Dispute Settlement Counsel by Michael Zeytoonian. "An educated consumer is our best customer.” That was the memorable tagline for Syms, a successful men’s clothing retail store in the New York...By Michael A. Zeytoonian