As a mediator, when I consider this question, I come up with the obvious answer. It is the one that all mediators would agree upon. Namely, “When the parties want and believe that the consideration of the race, gender or culture of the mediator would help resolve their dispute.”
This is basic for the trained mediator. We understand that while it is true that the process belongs to the mediator, the dispute and its resolution belongs to the parties. Therefore the success of the mediation rest with the parties. It is this empowerment of the parties that make the process work and if the parties or their advocates believe that the race, sex and gender of the mediator is important, then it is important.
Still, is it that simple? Some of us, educated in the sixties in community development concepts remember theories about basic human needs. One that stands out for me is George Herbert Mead’s “Looking Glass Theory”(1) , which hypothesizes that “I am what you think I am.” Sometimes, more than not, these dynamics are at work as it relates to how the parties perceive the mediator.
I. A Realist Point of View
America is a “racist” society and has for most of its existence been a sexist society. While the country and some of its communities have embraced the economic, cultural and social contributions of individuals from other cultures and countries most have not embraced these cultures as a whole
Even those of good will and those who are actively engaged with other cultures don’t always understand the nuances of these other cultures. When you add language differences on top of this, it only increases the difficulty of understanding.
My partner of 12 years, who immigrated to this country from South America 19 years ago and I discuss this often. Sometimes we discuss our own understandings and the use of adjectives that have different meanings for us because of the cultural and/or language differences (English is not her first language). We, however, are motivated to bridge the gap but still have to work at it. Imagine the struggle it must be for those who have no motivation to do so at all. Then magnify that when a conflict arises. Under those circumstances it becomes almost impossible to understand the others cultural differences and the motivation to do so may not be there.
As far as the differences between female and male values are concerned, we have all heard the expression “Woman are from Venus and men are from Mars.” While some may try to explain the differences in that way is not as important as the fact that for a good part of American history some have used the differences to treat woman like second class citizens.
One example of this insensitivity and treatment is the way that victims of sexual assaults were treated in the past during investigations of these crimes. For a long period of time authorities did not appreciate the importance of having those victims interviewed and counseled by female investigators and/or therapist. Fortunately today, that has changed.
I have handled disputes where uniformed female peace officers were involved in employment disputes. After identifying with me as another minority, they were able to relax so that they could identify their real interest in the matter. As a result they were able to feel comfortable enough to express their fears and aspirations so that a healing process could begin. I can only imagine the connection they would have in those situations with the culturally competent mediator of the same sex.
One enigma is that African Americans and white Americans should be more culturally alike than any other group in this society because both of these groups been here for over 400 years. For the most part the American culture is the only one that most African Americans know and the one that they helped shape. However there is this belief, from both groups, that they are as different as night and day. It is Mead’s theory personified. It is this dynamic–I am who you think I am- that, in my opinion, drives these two races further apart and forces them to be different – – and in many instances have different perceptions of the same event- – and not the actual differences.
So there is this complex history of race, culture and gender differences in this country. However it is not something to run away from, disregard or worst, pretend it doesn’t exist. For when we do that, we only keep delaying the inevitable debate. It is this denial of the persistence of prejudices and differences that is one of the reasons why race relations in the country have become so tense and fractionalized. We can feel the undercurrents, but not enough people want to acknowledge it and take it on. When that happens, individuals tend to think of things as a single racist or sexist incident rather than insidious racism or sexism that needs to be discussed and challenged. Like it or not our country, as great as it is still suffers from this negative legacy.
Individual parties and their advocates bring this history into the mediation process with them. Whether it is a belief that they are powerful because of their status or their race, sex or culture or powerless because of their status or race, sex or culture or the sex, race, etc. of advocates.
These are powerful issues and advocates need to recognize and understand that they exist and may need to be handled in the mediation in order to reach a resolution.
II. The Current Trend the Mediation Selection Process
There is an ongoing debate in the mediation field about whether the more competent mediator should possess subject matter expertise. More and more advocates, especially lawyers are opting for subject matter expertise and if the mediator happens to have process expertise then is only frosting on the cake. For example, I recently attended a presentation where lawyers stated a preference for using mediators who were familiar with the culture of insurance adjusters, especially when the adjuster participates in the mediation process.
Many advocates, especially lawyers, insist that subject matter expertise is not only important but also required to mediate their disputes. (This does not explain why retired Judges, who normally possess no subject matter expertise, but are strong on process, are used by lawyers more often than others.)
This notion of subject matter expertise appears to be the legal professions way of adapting and molding the mediation process to look more like something that is more familiar to them. (This need for familiarity could also explain the lawyers use of judges in a mediation process that is not adversarial). Once again the dynamics of Mead’s theory could offer some explanation for this.
It is safe to say that, prior to the infusion of lawyers as mediator, most in the field believed that process expertise is by far the most important part of the mediation phenomenon. Yes, there is required preparation by the mediator in a dispute, but it is widely held that while it is possible to facilitate a discussion with little or no subject matter expertise, it is virtually impossible to mediate a dispute competently without process expertise. It goes beyond saying then that the most effective mediator may be those who possess both.
If you follow the current trend and belief of most lawyers that by using mediators who possess subject matter expertise– such as the mediator who is familiar with the culture of insurance adjusters–that the chances of reaching resolution is greater, then it only follows that the use of mediators who understand the culture, race or gender nuances or posses this expertise could achieve the same result in appropriate circumstances.
That getting the right combination of expertise in these circumstances can help resolve the disputes of the parties should be beyond question. When this occurs, there is the opportunity to resolve not just the issues that are on the table but the underlying issues as well and the negative behavior that created the dispute in the first place.
For the attorney/advocate this may be an opportunity to prevent his or her corporate client from experiencing the class action suit that is lurking in the shadows or sort out the insidious, unconscious behavior and actually start the healing process. For when it comes to racist and sexist acts, getting parties to heal is crucial. This healing can go beyond the individual and be therapeutic for an entire organization. In some cases it can change attitudes and behavior and these changes can become contagious in a positive way.
In addition to its social value, this healing makes economic sense for California corporations, public and private, in the changing face of California, which is rapidly becoming more and more diverse. As these subcultures become dominant there will be a demand for new and greater understandings.
III. The Advocates Role
Advocates need to be aware of the cultural, sex or race dynamics involved in the disputes that they are asked to handle. It is my belief that when the ethical lawyer makes him or herself aware of the underlying dynamics and examines these issues as part of their mental checklist, they may discover issues that can be an obstacle to settlement and will need to take action to handle them. If in doubt ask the client if such factors exist and the importance they have in the dispute.
Once the advocate and their client have identified the need for a culturally competent mediator, the next task is finding the right one. We all know that not all American women share the same value system or cultural experience. The same is true for African Americans or people from other countries, so be careful not to stereotype.
Therefore advocates must make sure that the mediator is sensitive and knowledgeable about those issues that are important to the parties. This means that they must interview the culturally competent mediator just as they would any other person with subject matter expertise. Trust that once the advocate has made the commitment to explore the underlying issues with their client and has identified the need, they will be able to ask the right questions and if they are not able to do so, let the parties interview the mediator for cultural competence.
Once again, do not assume cultural competence just because the mediator is the same race, sex or gender as the parties or their advocates. There must be some investigation of the mediator’s background, sensitivity and commitment to the needs and desires of the party or parties, and they must be able to convince both sides that they can remain neutral in the dispute.
However always keep in mind that there will be those times and those disputes where the looking glass theory–I am what you think I am– will dominate the selection efforts and it may not have anything to do with actual cultural similarity or sensitivity on the part of the mediator but will simply be a statement about the past history of racism, sexism and the treatment of other cultures in this society. In these situations, the party or parties may just need to identify with someone who looks like them. This can be a compelling interest and until we can bring about a color blind and a culture neutral society, this need should be understood and respected.
IV. Another Opportunity
If you are still in doubt about the selection of an individual mediator but see the need for cultural competence in the dispute, consider co-mediation. This is a process where two or more mediators share the process and are usually compatible as far as style and process are concerned. The key here will be compatibility with each other and the understanding that while their subject matter expertise may be different, their process skills must be compatible.
The Community Mediation programs have had great success with this concept, as well as others mediations where the stakes are high and there are multiple parties. By providing diverse mediators where the parties are multi-ethnic, etc., this appears to eliminate the feelings of bias and helps them “level the playing field.
In summary, advocates need to be aware of the dynamics of race, culture and gender and the effect, if any, it may have on their client’s dispute. More importantly that these dynamics may be present in the dispute, in the disputants and even in your opposing counsel. This could be standing in the way of a resolution.
Advocates should not hesitate to reach out to others who are culturally competent to assist either as mediators, co-mediators or confidants to help them identify and clarify sensitive issues and possible solutions.
This is all still a learning experience and the more we learn and interact with each other, the more we will appreciate our similarities and our differences. I envision a future where George Herbert Mead’s Looking Glass Theory of “I am what you think I am.” will be replaced with ” I am who I am.” and “I am respected for who I am.
(1) George Herbert Mead, (1863-1931), American pragmatist philosopher and social psychologist, born in South Hadly, mass. Educated at Oberlin College, Harvard University, and in Europe. He taught at the University of Chicago from 1894 until his death. As psychologist, a behaviorist emphasizing the role of spoken language in the development of the self; as philosopher, contributed to the development of the American pragmatism with his philosophy of “objection realism”. During his lifetime, Mead published only articles. His books, published posthumously from manuscripts and students’ notes, include The philosophy of the Present (1932, Mind, Self, and Society from the Standpoint of a Social Behaviorist (1934), and The philosophy of the Act (1938).
Originally published in The Daily Journal, California Law Business, Corporate Counsel Supplement, on 11/9/98. Republished with permission.Commencing mediation before employment relationships are terminated and lawsuits are filed can turn adversaries...By Laura Farrow, Linda McSweyn