Culturally Responsive Alternative Dispute Resolution For Latinos
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September 2000 |
The material in this study is well presented, with a comprehensive table of contents, an introductory explanation of how the report is organized, and a logical placement of its findings. Section II is an assessment of dispute resolution approaches, as it explains the characteristics of what the authors call the Anglo-American Mediation Model, followed by a treatment of culture and mediation. The authors use, as a framework for this assessment, the analytical model developed by John Paul Lederach in his impressive work, Preparing for Peace: Conflict Transformation Across Cultures, released in 1995 by Syracuse University Press and widely considered in the mediation community as an excellent treatment of cultural issues in mediation. Lederach was also a consultant in the project. His model consists of four components: facets needed to aid in resolving disputes, functions or how to accomplish the facets, forms in which culturally appropriate strategies and approaches are made, and formulas or techniques to implement these forms. Lederach further breaks down the role of mediators and other third parties in social conflict into five elements: Entry, Gather Perspectives, Locate Conflict, Arrange/Negotiate and Way Out/Agreement. This structure mirrors the stages of a mediation session, and also recognizes the more holistic and communal approach to conflict resolution used by cultures other than the so called Anglo American or "mainstream" society.
Throughout the study, the use of tables to organize and summarize the authors' findings and models is extremely useful and practical, as the main concepts can be digested more easily and succinctly. Of particular interest is the presentation of the factual sources from which the authors reach their conclusions. It is revealing that a relatively small sample of 23 English and 5 Spanish speakers that used family mediation in Phoenix, Arizona and surrounding area were interviewed for the study, while a slightly larger sample of 42 English and 24 Spanish speakers who did not use mediation were interviewed for comparison. This rather low number is s. 7?y of the interactions between Latinos, specially recent monolingual immigrants, and the police, the courts, and social services agencies are tinged and sometimes drenched with cultural misunderstandings, stereotypes and assumptions that exacerbate a minor dispute into major, traumatic conflict. Situations where a child is taken away because of alleged physical abuse, when education of differing laws and customs may suffice; the cultural need of some Latino males to save face in the middle of conflict being ignored; the cultural reluctance to take action in the face of disputes with the 'system;' are given as examples where a more culturally aware approach would not only help to prevent violence, but would enable the people involved to learn to solve their problems themselves at an earlier stage.
One important conclusion that the authors reach is that the traditional 'Anglo' mediation model alone will not meet the needs of Latino disputants, due to some extent to their reluctance to air their private grievances in public, their lack of awareness that mediation is available to them, and the traditional tendency to bring some of their problems to trusted community leaders in their native countries, an alternative obviously not available here. Of course, non-Latino police officers, lawyers, judges, social workers and others may find equally frustrating their inability to understand the customs and behavior of Latinos, adding significant fuel to the fire. It is interesting that the authors themselves point out that the term "Latino" as used in the study does not encompass all people with Spanish surnames or even all Spanish speakers, but mostly people of Mexican origin who have lived in the U.S. For less than a generation.
The study also presents some suggestions to improve the way the judicial system serves the need of Latino disputants. Some options, such as using bilingual staff, signs and forms, and publicizing these services, are fairly obvious, while more innovative offerings are the development of neighborhood courts more familiar with the parties and cultural issues likely to arise; the expansion of representatives allowed to assist the Latino disputants to include trusted relatives, friends or other individuals; and a closer relationship between the courts and community organizations serving Latinos, to include direct help to Latino immigrants in dealing with judicial substance and procedure, as well as neighborhood based mediation services for cases referred by the courts. Of course, some of these suggestions have become reality, specially in the San Francisco Bay Area, where Latinos and other ethnic groups enjoy a limited variety of mediation services that are free of charge for cases referred by the local courts, and where the use of bilingual resources for non-English speakers is widely available although not always utilized.
A very useful tool provided in the report for those interested in cross-cultural communication is a Matrix of Cultural Issues in Family Relationships, where the factors of language difficulty, corporal punishment, machismo, extended family, fatalistic acceptance and herbal medicine are addressed by listing so-called 'indicator questions' that personalize the issue for a particular individual, as well as the legal effects and possible alternatives. This Matrix is suggested specifically for use by a social agency or other entity that is in direct contact with Latinos. For example, the issue of corporal punishment arises when a child may have been physically abused, and the cultural issue is addressed by the question: "When do you think is OK to spank a child?" The apparent legal effect of excessive corporal punishment is a child abuse charge, and one possible alternative is parenting classes to address the cultural differences between the parent's own cultural norms and his relatively new and somewhat different cultural and social environment, in which he or she needs to function. The danger in this approach to cultural differences is that social workers or others may be taught or may develop certain stereotypes when confronted by, for example, Latino parents potentially responsible of child abuse. Nevertheless, this Matrix can be useful when applied judiciously and carefully to specific situations.
No study on Latino cultural issues would be complete without addressing the role of the police, and the authors dutifully point out the great cultural gap that usually exists between the police and the Latino community in general, and the various options available to bridge that gap, including the use of cultural sensitivity training in addition to courses in dispute resolution, the use of Latino police officers to generate trust in the community, and a calmer, gender specific approach with calls involving possible domestic violence. Unfortunately, no information is provided as to whether any law enforcement agency has successfully tried or adopted any of these approaches.
Section IV of the study closes with the proposal of a Collaborative Citizen Panel as an evaluation tool to use in the entire Justice System. This panel would be composed of people from the courts, the police, social service agencies, and the different ethnic communities being served, and would begin a continuing dialogue between these sometimes divergent groups. The panel would assist the agencies involved to understand the needs and perceptions of the ethnic communities under their jurisdiction, give a voice to these communities in addressing the need to reform certain aspects of the justice system, and actually bringing about these reforms, so that confidence in the ability of the justice system to deal with cultural differences fairly and effectively is enhanced. The authors go into some detail in how the panel would achieve these goals, including the use of interviews, retreats, and facilitated discussions to develop action plans and specific objectives for their implementation within a reasonable time.
The last and perhaps most valuable section of the study provides us with an alternative mediation model for use by the Latino community. Using the five facets of third party intervention developed by John Paul Lederach as addressed earlier in this article, the ENTRY in this model begins with the need to increase awareness in the target community regarding the availability of mediation services that specifically address the needs of Latino disputants. The authors advocate the involvement of the police, schools, churches, private counseling agencies and the bar to get the word out, including the need to train these entities to help them identify disputes amenable to mediation. The authors stress the importance of Latino attorneys in this scheme, who will be glad to know that they are expected to be trained as mediators and work pro bono, as they presumably already have the respect and confidence of the Latino community.
The identity of the mediator is said to be important, with local politicians, community organizers, priests, counselors, or respected elders joining attorneys as more suitable mediators in the Latino community. The authors even state that "it might even be desirable for the mediator to be familiar with the family," a virtual negative in the so called 'Anglo' mediation model and usually grounds for disqualification, and that relatives could play a more active role, another taboo in more traditional mediation models. The authors go as far as suggesting that the mediators for this model be trained using the nontraditional elicitive approach advocated by Lederach. This approach empowers the trainees with the ability to create their own model to address the cultural characteristics of the relevant ethnic group, perhaps using components of more traditional, prescriptive models but modifying or adjusting them to reflect their new use.
In the GATHER PERSPECTIVES portion, the authors advocate a more holistic approach in mediations involving Latino parties, indicating that the extended families should have a more active role in the perception of the dispute, with perhaps the need for a home visit. Care would have to be exercised to maintain confidentiality. Another suggestion is the use of substantial amounts of time to allow the Latino parties to vent, even about issues other than the actual dispute, as they supposedly have a greater need to do so. However, it has been my personal and professional experience that all parties benefit from venting and being heard during the first phase of a mediation session, regardless of the ethnic or racial makeup of the disputants, although Latinos may generally use random subjects unrelated to the substance of the dispute as a venting outlet.
In terms of LOCATING CONFLICT, the authors again propose the use of a more holistic approach that takes into account the Latino tendency to include the well being of the extended family as an important interest that may even outweigh their own individual priorities. Even individual interests may be different from those of other groups because of the importance of saving face and respect, specially for males, the authors maintain. In the section of ARRANGE/NEGOTIATE, it is suggested that mediators take a more active role in directing the discussion and suggesting solutions than is acceptable in more traditional models. The authors cite the results of their study indicating that 80% of the Latino disputants polled stated that their mediators were provided most of the final solutions, as opposed to 35% of the English speaking people polled. Moreover, when asked their expectations of what a mediator would do for them, the authors report that the most common response by Latinos was to "tell us what to do" or "give advice." The negotiation process itself may need to be more holistic, as the parties may feel that issues that appear to be distinct may in fact be intrinsically connected and should therefore be addressed conjunctively.
By way of WAY OUT/AGREEMENT, the authors recommend that the mediator may have to be involved even after the mediation session has been completed, as the parties may expect her to help them process their agreement, if any, through the appropriate agency, as well as to oversee the enforcement of the agreement along cultural norms. Of course, this is a significant departure of the more traditional models and brings up a myriad of potential issues, from confidentiality to impartiality, and even liability. A very helpful Table of this discussion synthesizes the main components and presents it in a simple, easy to read manner.
Perhaps the most innovating recommendation in this report is the creation of the role of INTERMEDIATOR. An Intermediator would be a person who is not only willing and able to mediate a dispute between Latinos, but who will also take a more active role as counselor, educator, translator, spokesperson and guide. The report's authors envision someone in this role to be involved, among other things, in "helping people work with the justice system, defining for people what is acceptable behavior and what is not, and promoting self-esteem, motivation and communication. " The report further breaks down the responsibilities of helping people work with the justice system into essentially assisting the Latino family in navigating the justice system, obtain services needed to bridge cultural misunderstandings, avoid judicial intervention unless necessary, and serving as a referral source for counseling or other services.
In terms of defining what is acceptable behavior, the intermediator's main role would be mainly to educate and teach about cultural practices that may be common in their countries of origin but not accepted in this country, to prevent the continuing pursuit of cultural practices harmful to the Latino family, and to help people cope with the cultural embarrassment of having their intimate family disputes and problems addressed by social agencies and other entities. As to promoting self esteem, motivation and communication, the authors suggest that the intermediator could help empower the wife where her male counterpart's behavior is unacceptable or destructive, assist the family members in working out their differences, provide a reality check when needed as far as facing the consequences of their behavior, and serving as role model.
The role of an Intermediator as envisioned by the authors is certainly a major step away from the role of mediator as most of us understand it to be, at least at the present time. This new, expanded role would require an almost intimate knowledge of the Latino family's interactions, disputes and other dynamics, not to mention the ability and desire to intervene in them practically to the point of social engineering. While the authors' goals in levelling the playing field within the family's male and female members should be applauded, it may be that these very same members of a particular family are comfortable in their roles, even as an outside observer may see some acts of sexism or chauvinism. I have mediated family disputes where this was clearly the case, and it was apparent that any attempt at changing this dynamic would not only be met by very strong resistance by both male and female family members, but that it would be inappropriate for us to adopt a culturally superior attitude and assume that our way of looking at their situation was somewhat more accurate than theirs.
While the extent of any intervention into intimate family affairs is subject to discussion, a third party should not engage in this practice unless it is absolutely necessary and only after gaining the trust and confidence of the family, something that only a few individuals can attain, thus significantly shrinking the already small intermediator pool. We should be hesitant to do more than perhaps try to educate them as to more serious cultural faux pas . On the other hand, this type of intervention may preferable to the alternatives of having official or legal intervention, carrying more severe consequences, by the police, the courts or social agencies. The issue of prevention is also complicated by the intermediator's role, as this individual would essentially have to be not only someone trained in mediation and communication skills, but also in other important subjects like psychology, counseling, law, supervision and cross cultural awareness.
Some of these concerns are addressed by the authors at the end of their report, when they discuss that the intermediators would be both officially provided by the courts, social agencies and the like, as well as privately obtained, and that there were points of action at the informal, official and legal level, according to the type and severity of the family dispute. Training in dispute resolution, judicial and social agency procedures, cultural translation and family psychology would be provided to officially provided intermediators. Private intermediators would be allowed to assist Latinos to the extent of their abilities, with some working merely as translators between the justice system and the family, while more experienced or better trained providers could help them negotiate their way through the system. Depending at what point the intermediators intervene, they could attempt to face the conflict first within the family and, should that attempt fail, move on to referrals and other approaches.
If the social agencies or the courts are already involved, then the intermediator would have a more active role as an intermediary between the family and the intervening entity, making sure that the family 's interests are understood while its members themselves understand what is happening, how it is affecting their lives and what steps they can take to resolve the conflict in a constructive way. The authors stress that the intermediator may need to be someone who knows the parties and understands the dispute, and that some of his roles could not be achieved unless this was the case. Moreover, this same intermediator would have to be accepted by the justice system as an spokesperson for the parties. While the local bar may consider this suggestion as practically bordering on the unauthorized practice of law, steps could be taken to ensure that proper legal counsel be provided for those disputants who needed it.
The report concludes by stating that both the various justice system
entities and the Latino families that are affected by them need help in
bridging the cultural chasms that divide them, and that a well qualified
intermediator may be just the person that can help everyone involved close
these gaps. This is an ambitious goal, in light of the many obstacles
blocking the road to understanding and collaboration, such as limited
funding for these types of projects, divergence as to the best way to
proceed, the ambiguous nature of the intermediator's role, and the perils
associated with ascertaining the cultural norms underlying people's
behavior. This report may be more useful in fueling the dialog regarding
the most appropriate ways to achieve a society where cultural differences
leading to conflict can be bridged constructively, fairly and without traces
of sectarianism and assumed cultural superiority.
