Intercultural Mediation

Intercultural Mediation


Abstract

Throughout times, Intercultural Mediation in China has become the preferred method for Dispute Resolution, besides preserving social peace in a country with huge extensions and diverse orography, and with a population of various ethnic origins. We shall compare the subjacent conditions with those in the Argentine Republic and propose some alternatives to implement such method as a Dispute Resolution System.

The People’s Republic of China

Introduction


The Chinese situation

In the history of origins of mankind, four civilizations arise as the most ancient, being those Babylon, China, Egypt and India.

One key difference amongst them is consistency, continuity and succession in time, and the Chinese civilization verifies a unique case of persistence along more than 5,000 years of documented history, a lapse in which there has not been substantial breakups, despite having gone through turbulent circumstances, as much in social as well as in politic aspects.

Such civilization has been enriched by the contribution of populations of very diverse origins, and even though the ‘Han’ ethnic group comprises 91.5 % of the 1,350 million inhabitants of the present People’s Republic of China, there are 55 more ethnics that have contributed and continue contributing to the cultural variety and richness. In such way, the reality of XXI Century China is multifaceted, in regards that different systems of values, psychologies, beliefs and traditions model and condition the behavior of its inhabitants.

As a consequence to the diverse orography, the geographic location, the differences in demographic volume and the long distances involved in its territory, there is a bridge between the most developed segments of the Chinese society and those located in areas far away from the main urban centers. Aspiring to narrow such bridge, the Government of the People’s Republic of China is constantly designing and revising specific policies in order to implement projects, aiming to integrate diverse communities, without forgetting to preserve the traditional cultural identity of the ethnic minorities.

Ethnic minorities

With the aim of unifying criteria and being able to appreciate the issues that Chinese civilization faces as a social unit, we shall consider at first which are the main characteristics of an ethnical group.

Distinctive language

The language or tongue is a verbal or gestural system of communication particular to a human community, and should not be confused with a dialect, which is a variation of such language, associated with a certain geographical area. The distinctive language to an ethnic minority is such that possesses its own characteristics regarding grammar and phonetics.

Natal Territory recognizable as such

This means that there exists a certain geographical area, located amongst the geographic and politic limits of a country, from which an ethnic minority has originated, and with which history, mythology, uses and customs of such ethnic minority is identified.

Own usages and customs

This aspect comprises a series of rites, behaviors and social practices, involving from clothing to food, as well as peculiar rituals for baptism, marriage, initiation, death, religion, architecture, art, which constitute the cultural heredity own by the community, worthy of preservation.

Sense of self identity

There is a strong feeling of membership to the ethnic group in relation to other members, as much as historical relationships of friendship and enmity with other ethnic groups.

Ethnic minorities in China

The People’s Republic of China is a unified multiethnic country, with 56 identified ethnic groups. Besides the Han ethnics, which is the greater part, encompassing more than 91 % of population, the rest is distributed among 55 groups, 18 of which hold a population of over one million inhabitants, 13 with more than 100 thousand inhabitants, and 7 with less than a thousand individuals. All ethnics in China hold equity under the law. The State protects their rights and legitimate interests, and applies principles of equality, unity, mutual help and prosperity common to the management of relationships among the different ethnics.

1. Han ethnic group: Some 1,159 million people, which constitutes the main ethnics in China. Distributed throughout all the country, mainly in the valleys of the Yellow River, the Yangtze, the Pearl River and the Song Liao prairie. The Han language (Chinese) is of common use for this group and for most of the ethnic minorities.

2. Mongol ethnic group: More than 4.8 million people. Inhabit mainly the autonomous region of Inner Mongolia and Xinjiang, Qinghai, Gansu, Liaoning, Jilin and Heilongjiang. Used to be a nomadic population, but nowadays they are sedentary in basic habits. They have an oral and written language or their own.

3. Hui ethnic group: Integrated by 8.6 million people. Apart of their main community in the autonomous Hui region in Ningxia, they inhabit all over the country. Their religion is Islam.

4. Uighur ethnic group: Integrated by 7.2 million people. Mainly inhabit the autonomous Uighur region in Xinjiang and their religion is Islam. They have their own oral and written language.

5. Miao ethnic group: Around 7.4 million people, widely distributed. Besides forming communities in Guizhou (50 % of Miaos), Yunnan and Hunan, they also live in Guangxi, Sichuan and Hainan. They have their own oral and written language.

6. Yi ethnic group: Around 6.58 million people. One of the most ancient ethnics in China. Mainly inhabit Yunnan, Sichuan, Guizhou and northeast of Guangxi. They are scattered in small communities and have their own oral and written language.

7. Buyei ethnic group: Some 2.54 million people. Most of them inhabit south of Guizhou province, and the rest in Yunnan, Sichuan and Guangxi. For oral and written language they use Buyei and also written Han.

8. Korean ethnic group: Around 1.92 million people, whose main community is the Autonomous Prefecture of Yanbian, in Jilin province. The rest live in Heilongjiang, Liaoning and Inner Mongolia. They have their own oral and written language.

9. Man ethnic group: Over 9.84 million people, being the second largest ethnic minority in China after the Zhuang. They mainly inhabit the China northeast, mainly in the Liaoning province, and the rest in some large and midsize cities.

10. Zhuang ethnic group: This is the most large minority group in China, with over 15.5 million people. Among them, 13 million live in the Autonomous Region of Zhuang ethnics in Guangxi, and the rest in the neighboring provinces of Yunnan, Guangdong, Guizhou and Hunan. They use the Zhuang oral and written language, and also the written Han.

11. Dong ethnic group: 2.51 million people, distributed among Guizhou, Hunan and Guangxi. They have their own oral and written language.

12. Tibetan ethnic group: Some 4.6 million people, 2.1 million of which inhabit the Autonomous Region of Tibet and the rest in Sichuan, Gansu, Qinghai and Yunnan provinces. Their religion is the Tibetan Buddhism and their language is the oral and written Tibetan.

13. Yao ethnic group: 2.13 million people, mainly distributed in Guangxi, Hunan, Yunnan, Guangdong, Guizhou and Jiangxi. They have their own oral language and use written Han.

14. Bai: Around 1.6 million people. Most of them live in the Autonomous Prefecture of Bai ethnics in Dali, Yunnan province, and the rest in Guizhou, Sichuan and Hunan. Their religion is Buddhism and their language is oral Bai and written Han.

15. Tujia ethnic group: Over 5.7 million people. They mainly inhabit the Autonomous Prefecture of Xiangxi, for Tujia and Miao ethnics, in the province of Hunan, and the Autonomous Prefecture of Enshi for Tujia and Miao ethnics, in the province of Hubei. Some others live in the provinces of Sichuan and Guizhou. They speak Tujia language, and read and write Han.

16. Hani ethnic group: 1.25 million people. Agriculture is their main activity being well known for their “terraced fields”. They mainly inhabit the valleys between Honghe and Lancang rivers, South of Yunnan province. They have their own oral and written language.

17. Kazak ethnic group: Over 1.11 million people. They mainly inhabit certain zones in the autonomous Uigur region of Xinjiang, and the rest in some parts of Gansu and Qinghai provinces. Their religion is Islam, and they have their own oral and written language.

18. Dai ethnic group: 1.02 million people. They inhabit in Xishuangbanna of Yunnan and other areas. Most of them are Buddhist. They speak and write in Dai as well as in Han.

19. Li ethnic group: Over 1.11 million people. They mainly inhabit center and south of Hainan province. They speak Li and read and write Han.

20. Lisu ethnic group: Some 580,000 people. They mainly inhabit on north of Yunnan province, and in its frontier with Sichuan province. They have their own oral and written language.

21. Ya ethnic group: Near 350,000 people, mainly located in the southwest of Yunnan. They have their own oral and written language.

22. She ethnic group: 630,000 people. They mostly inhabit the mountains of Fujian and Zhejiang provinces, and also in Jiangxi, Guangdong and Anhui provinces.

23. Gaoshan ethnic group: 400,000 people. They mostly inhabit the central mountain area and western valleys of Taiwan province. This is the main minority in the island. The rest is spread in Fujian and Zhejiang provinces and other shore spots in the continental area. They have their own oral language.

24. Lahu ethnic group: Over 410,000 people, mainly inhabit the Valley of Lancangjiang River, located southeast of Yunnan province. They have their own oral and written language.

25. Shui ethnic group: Over 340,000 people. They mainly inhabit the southeast of Guizhou province, and also in the west side of the Zhuang ethnics Autonomous Region in Guangxi. They speak Shui and read and write Han.

26. Dongxiang ethnic group: Over 370,000 people. They mostly inhabit the Gansu province, and also some spots in Qinghai, Ningxia and Xinjiang. They speak Dongxiang and read and write Han.

27. Jingpo ethnic group: Near 120,000 people. Their ancestors lived in the south of Qinghai-Tibet plateau and migrated towards south. As of today, they mainly inhabit some spots west of Yunnan province. They have their own oral and written language.

28. Bulang ethnic group: About 80,000 people. They mainly inhabit the district of Menghai and areas near the Autonomous Prefecture of Dai ethnics in Xishuangbanna, province of Yunnan. They speak Bulang and read and write Han.

29. Kirgiz ethnic group: Some 140,000 people. They mainly inhabit the southwest of Xinjiang province. It is a nomadic ethnics that evolved into sedentary life. They have their own oral and written language.

30. Tu ethnic group: More than 190,000 people. They mainly inhabit the east of Qinghai province. They speak Tu and read and write Han.

31. Daur ethnic group: More than 120,000 people, at both sides of Nenjiang River, northeast China, as well as in the prefecture of Tacheng, Xinjiang. They speak Daur and read and write Han.

32. Mulao ethnic group: 160,000 people. 90 % inhabit the Autonomous District of Mulao ethnics in Luocheng, in the mountain zone in northwest Guangxi. They speak Mulao and read and write Han.

33. Qiang ethnic group: Over 190,000 people, mainly in the Maowen district from Autonomous Prefecture of Tibetan and Qiang ethnics in Aba, Sichuan province. This is an old ethnics, as it has been recorded in some inscriptions on shells from Yin Dynasty, over three thousand years old. They speak Qiang and read and write Han.

34. Salar ethnic group: Some 90,000 people, mainly in some spots in Qinghai, Gansu and Xinjiang. They speak Salar and read and write Han.

35. Tajik ethnic group: Over 30,000 people. They live in the Pamir plateau, southwest of the Uigur Autonomous Region in Xinjiang. They work on stockbreeding and also agriculture. They speak Tajik and read and write Uighur.

36. Maonan ethnic group: Over 70,000 people, mainly in the district of Huanjiang, northeast of the Autonomous Region of Zhuang ethnics in Guangxi. They speak Maonan and read and write in Han.

37. Gelao ethnic group: Some 440,000 people. They inhabit mostly in the Autonomous District of Gelao ethnics in Wuchuan and in the Autonomous District of Gelao and Miao ethnics in Daozhen, province of Guizhou. Some also live in Yunnan and Guangxi. They speak Gelao and read and write Han.

38. Xibe ethnic group: Over 170,000 people. Mostly inhabit the Autonomous District of Xibe ethnics in Qapqal at prefecture of Yili, Xinjiang, and in the provinces of Liaoning, Jilin and Heilongjiang. They have their own oral and written language.

39. Achang ethnic group: Over 27,000 people. They inhabit the districts of Longchuan and Lianghe in the Autonomous Prefecture of Dai and Jingpo ethnics in Dehong, province of Yunnan. Most of them have villages separated from Dai and Han ethnics. They speak Achang and read and write Han.

40. Primi ethnic group: Over 29,000 people, mainly inhabit the mountain zone the northwest of Yunnan province. Their ancestors came from northwest China and are the one ethnics with the longest emigration route. They speak Primi and read and write Han.

41. Nu ethnic group: Over 27,000 people. They inhabit both sides of Nujiang River, in the Yunnan province, and they mingle with other ethnics. They speak Nu and read and write Han.

42. Uzbekan ethnic group: Over 14,000 people. They are scattered in South and North of the Uighur Autonomous Region of Xinjiang and peacefully mingle with the Uighur and Kazak ethnics. They have their own oral and written language.

43. Russian ethnic group: Over 13,000 people in Chinese territory. Most of them live in Yili, Tacheng, Altay and Urumqi, in the Uighur Autonomous Region in Xinjiang, while others inhabit the Heilongjiang province and the Autonomous Region of Inner Mongolia.

44. Ewenki ethnic group: Over 26,000 people, mainly in the zone of Hulun Buir, in the Autonomous Region of Inner Mongolia, and also some places of the Heilongjiang Province. This is the only ethnic group that practice deer breeding. They speak Ewenki and read and write Mongol or Han.

45. Naxi ethnic group: Over 270,000 people, mainly in the Prefecture of Lijiang, province of Yunnan. They created the Dongba script over a thousand years ago, being the most complete ideographic language to this day. They speak Naxi and read and write Han.

46. Bao’an ethnic group: Some 12,000 people. They inhabit the Province of Gansu. This is a new ethnic group based on interchange and marriages between Mongols, Huis, Hans, Tibetans and Tus since the Yuan Dynasty in the 13th. Century. They speak Bao’an and read and write Han.

47. De’ang ethnic group: Over 15,000 people. The greater part inhabits in the Province of Yunnan. They speak De’ang and read and write Han.

48. Yugur ethnic group: Over 12.000 people. Mostly inhabit the Autonomous District of Yugur ethnic and the Canton of Yugur ethnic in the City of Jiuquan, South of Gansu Province. They speak Yugur and read and write Han.

49. Tartar ethnic group: Over 5,000 people. They inhabit mainly in the cities of Yining, Tacheng and Urumqi of Xinjiang and their religion is Islam. They have their own oral and written language.

50. Lhoba ethnic group: Barely over 2,300 people. Their communities are in the districts of Mamling, Medog, Zayü, Longzi and Langxian, in the Prefecture of Nyingchi in Tibet. This is the smallest ethnic in China. They speak Lhoba and read and write Han and Tibetan.

51. Jino ethnic group: Some 18,000 people in the canton of ethnic Jino in the Autonomous Prefecture of ethnic Dai in Xishuangbanna, province of Yunnan. They speak Jino and read and write Han.

52. Derung ethnic group: Over 5,800 people. Most of them inhabit the valleys at both margins of Dulong River, West of Yunnan Province. They speak Derung and read and write Han.

53. Oroqen ethnic group: Over 7,000 people, mainly in the zone of Hulun Buir in the Autonomous Region of Inner Mongolia. They speak Oroqen and read and write Han.

54. Hezhe ethnic group: Over 4,200 people. They mainly inhabit the margins of Heilongjiang and Usulijiang Rivers, East of Heilongjiang Province. This is the only ethnic whose economy is based on fishing. They speak Hezhe and read and write Han.

55. Monba ethnic group: Some 7,500 people, mainly in the districts of Medog and Hecuona in the Autonomous Region of Tibet. They speak their own language and read and write Tibetan.

56. Jing ethnic group: Over 18,000 people. Their communities are the natural villages of Wanwei, Shanxin, Wutou and Tanji in the city of Fangcheng, South of the Autonomous Region of Guangxi. They speak Jing and read and write Han.

Unity in Diversity

This is the slogan that the Chinese government uses to synthetize the policy or development and preservation of cultural identity. Every effort aim to accomplish harmony and social stability, detecting and solving conflicts at the stage of latency, preventing the outcome of rebellion in spots located far away from large cities, on a territory of enormous surface, and with a very irregular topographic relief.

There is a philosophical base for this position, as found in The Analects of Confucius (Century V BC), Chapter 16 (Ji-Shi), verse 2, which states as follows:

Confucius said, "When good government prevails in the empire, ceremonies, music, and punitive military expeditions proceed from the son of Heaven. When bad government prevails in the empire, ceremonies, music, and punitive military expeditions proceed from the princes. When these things proceed from the princes, as a rule, the cases will be few in which they do not lose their power in ten generations. When they proceed from the great officers of the princes, as a rule, the case will be few in which they do not lose their power in five generations. When the subsidiary ministers of the great officers hold in their grasp the orders of the state, as a rule the cases will be few in which they do not lose their power in three generations. When right principles prevail in the kingdom, government will not be in the hands of the great officers. When right principles prevail in the kingdom, there will be no discussions among the common people."

The Chinese Mediator

Ever since ancient times, the civil mediation system has gone thru a long story as a means to solve civil disagreements, greatly influencing court procedures. It appears as the product of the togetherness of multicultural factors, becoming the idealization of the peaceful and harmonic social state once imagined in Ancient China. As such, it shows as a valid alternative for solving disputes in a society fond of ceremony and caring about interpersonal relationships.

Mediation as much as negotiation are a couple of concepts that have been practiced since long ago in China Proper. In texts by Confucius, it has been said that disagreements must be solved by means of moral persuasion and consensus, instead of under coaction; and also that the natural harmony of human relations shall not be interrupted. Mediation in China has been practiced in systematic ways in the People’s Mediation Commissions, as established in the Legal System.

Article N° 111 of the Constitution of the People’s Republic of China, adopted on December 4, 1982 rules that:

The residents’ committees and villagers’ committees established among urban and rural residents on the basis of their place of residence are mass organizations of self-management at the grass-roots level. The chairman, vice-chairmen and members of each residents’ or villagers’ committee are elected by the residents. The relationship between the residents’ and villagers’ committees and the grass-roots organs of state power is prescribed by law. The residents’ and villagers’ committees establish committees for people’s mediation, public security, public health and other matters in order to manage public affairs and social services in their areas, mediate civil disputes, help maintain public order and convey residents’ opinions and demands and make suggestions to the people’s government.

Confucianism and Taoism are paramount philosophical cornerstones for Chinese idiosyncrasy, and the concepts of social relationship, harmony and cooperation are paramount on both of them. Even in the Book of Mutations (I Ching or Yi Jing); where the grapheme [?] is sometimes translated as “Peace” and sometimes as “Harmony”; there is a reference to a fundamental principle:

“Heaven and earth unite: the image of PEACE.

Thus the ruler

Divides and completes the course of heaven and earth,

And so aids the people.”

During the last 2,000 years, Confucianism and Taoism have conditioned the design of politics, educational and economic systems in China, equally influencing patterns of behavior and thought of its inhabitants.

Chinese history and mythology abound in tales where mediation is a prime subject. Because all of this, it seems that dispute resolution by means of peaceful methods in China should be considered as an inseparable part of its civilization.

In the People’s Republic of China there is “The People’s Mediation Law”, passed on January 1st, 2011, which on Article 2 defines such activity as:

“…a process that a people’s mediation commission persuades the parties concerned to a dispute into reaching a mediation agreement on the basis of equal negotiation and free will and thus solves the dispute between them.”

Further on, Article 14, states that

“People’s mediators must be adult citizens who are impartial, decent and dedicated to the people’s mediation work, and have a certain level of education, policy understanding and legal knowledge.”

In the international context, Chinese techniques on negotiation and mediation are having an impact on many practice fields: Administration, Diplomacy, Business, etc.:

As a matter of fact, we can assure that very well-known universities, such as Berkeley (United States), California (United States), Geneva (Switzerland), Harvard (United States), Lausanne (Switzerland), Victoria (Australia) are presently including in their curricula many considerations to negotiation and mediation methods used in China.

History of Mediation in China

Mediation in China has been used for more than 2,000 years, with records showing it was used as early as the Western Zhou Dynasty (1146 BC – 771 BC) and then used nationally during the Qin Dynasty (221 BC – 207 BC). Even with the advent of the Rule of law during the third century BC, there was a strong bias against bringing lawsuits and a preference for mediation throughout the history of Imperial China, even thru the Qing Dynasty (ending in 1911). After the People’s Republic of China was established in 1949, the legal system and the mediation system developed together. China’s 1982 Constitution reinstituted the People’s Mediation Committees, which conduct mediations in neighborhoods, villages, and workplaces, a system that continues to these days.

The foundation of mediation in China today is based on both Confucian philosophy and Maoist thought. Confucian principles include the preference for resolving disputes privately, the duty to preserve natural social harmony, the value of "compromise" in resolving disputes, and the value of "self-criticism." Under Chairman Mao, these same Confucian values and the mediation process were used to stabilize the government’s control of the masses and to promote social harmony. Because of the dramatic growth in litigation since the 1990s, the Chinese Government adopted a new Mediation Regulation in August 28th. 2010 to again encourage parties involved in disputes to use mediation. The law suspends pending lawsuits to give parties a chance to resolve them through mediation and states that mediated settlement agreements are enforceable as contracts in court.

In modern China, there are two categories of mediation; Community Mediation (Ren Min Tiao Jie), which is part of the Alternative Dispute Resolution system, and Court-Performed Mediation (Fa Ting Chu Mian Tiao Jie), which is part of the Justice system.

Etymology

A lot has been said and written about the etymology of words such as ‘mediation’, ‘mediate’, ‘mediator’, so that there is no need to further explore into such matter.

Nevertheless, it seems interesting to analyze the etymology of the Chinese expression, which was generated in a completely independent way of the word ‘mediate’ and its derivatives of Latin origin.

In such case, the Chinese Word is etymologically composed in this way:

? Tiáo, whose English meanings are ‘harmonize’, ‘reconcile’, ‘blend’, ‘tempt’, ‘provoke’, ‘incite’. Its primitive components are ? (? yán) ‘words’ and ? (zhou) ‘circle’ or ‘cycle’.

? Jie, whose English meanings are ‘divide’, ‘split’, ‘liberate’, ‘explain’, ‘untie’, ‘loosen’. Its primitive components are ? (jiao) ‘horn’, ? (dao) ‘knife’, and ? (niú) ‘ox’.

Thus, we have the word [??] or [??] Tiáo Jie, which in whole means ‘mediate’ or ‘mediation’, ‘settle’, ‘make peace’. In this case it is not the sole meaning of the word, but a philosophical message, implicit in its components. Chinese characters or sinograms are not a random drawing, but an abstract representation of a philosophical concept.

Putting together all the components meanings, a message can be extrapolated, a kind of invitation to “promote harmony by means of dialogue, thoroughly analyzing facts.”

Community Mediation

[????] Ren Min Tiao Jie, has been variously translated as People’s Mediation Committees, People’s Conciliation Committees, or Neighborhood Residents Committees. These Committees are set up in villages, townships, work units, and in regional or professional organizations to handle civil matters, and petty criminal matters. Each Committee is composed of individuals from the community who are believed to be fair and impartial. Generally, they are elected to a 3-year term and are paid a small stipend by the government for providing both mediation services and educating the public about legal issues. There is no cost to the parties who use these mediation services. The mediation process is flexible, and may use one mediator or a panel of mediators. The mediator meets with the parties either individually or at the same time and helps them resolve the matter.

Follows a fragment of an article authored by Kenneth Cloke; a well-known mediator; Director of the Center for Dispute Resolution in Santa Monica, California (United States):

In China, with the greatest support of population exists one of the greatest and more complete mediation program in the whole world. In the Asian country, mediation is not only a mechanism for conflict resolution, but a method to exercise social values with the direct involvement of the conflicting parties and with their prominence, above all in the countryside, in factories and in mines, with some incidence in the neighbors community. In Chongqing, a city of almost 12 million inhabitants, 11.855 Mediation Committees work with almost 90.638 mediators. One mediator every 100 inhabitants. In 1983, 130.262 disputes were mediated with 95.7 % resolution. 31 % of these disputes were family matters, 29 % was about neighbor relationships, 17 % were disputes related to rural and agricultural property, and 23 % were of industrial nature. From the 13.000 disputes that were presented in Chongqing the 80 % was solved and did not make to a trial process.

The method’s success can be observed in the proportional growth of cases. Before 1998, there were 987,000 People’s Mediation Committees and 10 million mediators in the whole country. In year 2000 alone, the Committees solved 5.02 million civil disputes, with a success ratio of 94.8 %. According to the Chinese newspaper People’s Daily of July 7, 2007, "The People’s Mediation Committees have solved 15.8 million disputes, with a success ratio greater than 95 %."

It is considered of such a great importance that the government itself reckons and promotes the system, which is denominated as “the first line of defense to guarantee social stability.”

Court Mediationl

[????] Fa Yuan Tiao Jie, is part of the Civil Procedure of China’s court system. In these cases, the judge that is assigned to the lawsuit will also conduct the mediation. Unlike Community Mediation, because the mediation process is part of the litigation process, there is an additional cost for it; it is not free to the parties. The Judge-Mediator may ask the parties to come to court for the mediation or the Judge-Mediator may go to the village to investigate and talk with the parties and witnesses. There is an evaluative element to the process, in that the Judge-Mediator may point out weaknesses, may apply certain cultural or legal values to facilitate settlement, may suggest settlement proposals, and may emphasize the economic or social benefits of settlement. Although it is considered a voluntary process, some critics believe there is a coercive element to the mediation. Once a settlement is reached, the court drafts a Mediation Statement that includes the claims, facts, and settlement agreement. This document is then signed by all of the parties and has the effect of a court judgment.

The Intercultural Mediation

The government of the People’s Republic of China assigns mediation a huge importance as an off-court system for dispute resolution, as it also allows certain functions to be decentralized and keep a regulated workload in the Judicial Power.

In addition, intercultural mediation consists to develop links of sociability between people from different cultures who reside in the same territory.

It is a vast territory populated by different ethnic groups, being their usages and customs different from each other, so there arises a variety of conflict sources, such as many aspects of daily living, in this regard:

Selective perception of objects

Time, for example, is perceived in a different way, according to the inherited cultural background. In some cultures, time is oriented towards present and future, meanwhile in others the past is emphasized, stressing moral values and ancestors.

Lie or deception are relativized in some cultures. In certain environments, it is not acceptable to avoid truth, while in others it is tolerated a certain lack of sincerity, as long as it contributes to preserve harmony in the whole.

Selective perception of language

Different components of language have a different significance, depending on the originating culture, as much for digital as for analog language.

Talk in a loud tone might be absolutely normal for members of some cultures, while for others it might be assumed as a gesture of bad education.

If a Latin-American nods with his head from up to down, he is showing agreement and conformity with a speaker, meanwhile if a Chinese nods with his head from up to down, he is only assuring the speaker that he is actively listening, but he is showing no opinion about the discourse.

To a natural from India, nodding his head from one side to another mean san affirmation (“yes”), while a movement of head from up to down means a refusal (“no”), something entirely different to the western gesture.

A thumb up means "everything is alright" in America while in Central Europe it has more the meaning of the number "one". In Iran, it is an impolite gesture, equivalent to the dirty finger in most other cultures.

When someone is invited and leaves right after the dinner, this means in China that the guests have loved the meal (still waiting would lead the hosts to believe that the guests have not eaten enough). However, in Canada, the United States and various European countries, the hosts expect the guests to stay and discuss, otherwise the hosts could think, if they left right away, they would have come just to eat.

The simple gesture of patting an infant’s head means in some cultures, an attitude of sympathy and affection, while in others it might have some offensive connotations.

In some cultures it is required that women cover their faces, while in others that look implies a safety hazard, being similar to masked felons.

In the aspects of healthcare, a blood transfusion might be the first requirement in a first aids case, while some religions consider this as non-allowable alternative.

Taking a picture might look as the most natural activity for a tourist, but there are some cultures who believe that by being taken in a picture, they are deprived of their soul.

Selective perception of relationships

There exist cultures where elderly people are celebrated and cared, while in others they are considered expendable material.

There are also some groups where women segregation is reputed as normal in commercial or social activities, while in many environments such behavior is considered as gender discrimination.

The type of physical contact between members of a group is different among cultures. Among Latinos, hugs, handshaking and cheek-kissing may be customary, but in some other cultures such demonstrations are reserved for certain cases of intimacy, and are considered as an excess.

Preserve the harmony

In the specific case of the People´s Republic of China, the Intercultural Mediation appears as an obvious strategic decision to preserve peace. It is very far of a simple coincidence or a circumstantial creation.

Being an enormously vast territory and with a very diverse orographic relief, with places of difficult access and many times isolated by climatic factors, a huge risk is run if human settlement nuclei are kept isolated.

Out of their own history, Chinese people learnt that an isolated human settlement, without contact with central government, starts to behave in an independent manner, producing secessionist movements, which in time require from central intervention as a way of control.

In the beginning, when the Western Zhou Dynasty established (770-256 BC) the power was decentralized, a fact that conspired for the regional lords to dispute the respective territorial predominance with the king. This is known as the Period of Warring States (475 BC – 403 BC), where seven kingdoms (Qi, Chu, Yan, Han, Zhao, Wei and Qin) were fighting among themselves, until being unified in a bloody way by the kingdom of Qin in 221 BC.

With the progress of time, new reunifications and revolts occurred, immediately after the 1911 revolution, since 1916 until 1928, warlords from north and south were fighting among themselves to reach power predominance.

This essay is very far from intending a diachronic analysis, historic or sociological of the to an froes that the Chinese society suffered until their last unification as the People’s Republic of China on October 1st, 1949, but the main point of the analysis aims to demonstrate that they learn from their own history.

Returning to the topic of the Intercultural Mediation, this is posed as a strategic tool, used to preserve harmony in every population nuclei, without distinction of ethnicity, in order to promptly detect any event that might require control from the central power.

Other cases of Intercultural Mediation

There are many other locations where Intercultural Mediation is applied. Such is the case of Austria, Belgium, Brazil, Canada, Finland, France, Germany, Greece, Netherlands, Ireland, Italy, Mexico, Poland, Portugal, Rumania, Spain, Switzerland et al. Nevertheless, none of these countries share the characteristics of China regarding vastness of territory, geographical disparity, demographic volume, climatic rigurosity or ethnical variety.

There is a remarkable progress in Spain, where this activity is widely promoted, provided that in many communities the activity is being institutionalized from the beginning of this new century.

There is an interesting paper on such respect, which states:

During the last years the idea has come up in Spain that a good part of the so-called conflicts motivated in intercultural relationships should be treated from the perspective of mediation. Generally, this type of conflicts characterized by cultural diversity are solely identified with those motivated by the presence of alien immigrants among “us”, applying in this case the term “intercultural mediation” in reference to this strategy for approaching intercultural conflicts. Together with this idea usage of mediation (considered, as we shall see further on, a process by some people), has appeared the figure of the so-called “Intercultural Mediator” as a key element, relevant to carry on such type of social intervention. It is curious, nevertheless, to prove that this “new” social figure has been linked, to a large degree, to the growth of presence of alien immigrant population.

Application in Argentina

Census

In regards to indigenous people, it is known their distribution, based on the Indigenous People Complementary Poll {Encuesta Complementaria de Pueblos Indígenas (ECPI)}, based on the Population Census of year 2004-2005, carried on by the INDEC (Instituto Nacional de Estadística y Censos de la República Argentina).

Further on, the Population Census carried in year 2010, could determine these data:

1. Pueblo Atacama: Fundamentally located in the Province of Jujuy, consisting on 13,936 individuals. Their language is Kunza.

2. Pueblo Ava guaraní: Located in the Provinces of Jujuy and Salta, Corrientes, Entre Ríos, Misiones and Santa Fe, and also in Buenos Aires City and Metropolitan Area, consisting in 17,899 individuals. Their language is Tupí-Guaraní.

3. Pueblo Aymara (or Aimará): Located in the high plateau between Peru, Bolivia and Chile. They are 20,822 individuals distributed in the country. Their language is Aymara.

4. Pueblo Chané: Fundamentally located in the Province of Salta, consisting on 3,034 individuals. Their language is Arawak.

5. Pueblo Charrúa: Fundamentally located in the Province of Entre Rios, consisting on 14,649 individuals. Their language is Charrúa.

6. Pueblo Chorote: Fundamentally located in the Province of Salta, consisting on 2,270 individuals. Their language is Chorote.

7. Pueblo Chulupí: Fundamentally located in the Provinces of Formosa and Salta, it adds up to 1,100 individuals. Their language is Chulupí or Nivaclé.

8. Pueblo Comechingón: Fundamentally located in the Province of Cordoba, it adds to 34,546 individuals. Their language was the Comechingon, which is now considered extinct.

9. Pueblo Diaguita / Diaguita calchaquí: Distributed in the Provinces of Jujuy, Salta and Tucuman, Catamarca, Cordoba, La Rioja, Santa Fe and Santiago del Estero, and also in Buenos Aires City and Metropolitan Area, adding up to 67,410 individuals. Their language was the Kakán, which is now considered extinct.

10. Pueblo Guaraní: Distributed in the Provinces of Jujuy and Salta, Corrientes, Entre Rios, Misiones and Santa Fe, and also in Buenos Aires City and Metropolitan Area, adding up to 105,907 individuals. Their language is Tupí-Guaraní.

11. Pueblo Huarpe: Distributed in the Provinces of Mendoza, San Juan and San Luis, and also in Buenos Aires City and Metropolitan Area, adding up to 34,279 individuals. Their language is Huarpe.

12. Pueblo Kolla: Distributed in the Provinces of Jujuy and Salta, and also in Buenos Aires City and Metropolitan Area, adding up to 65,066 individuals. Their language is Quechua.

13. Pueblo Lule: Distributed without specify, adding up to 3,721 individuals in the whole country. Their language was Lule-Tonocoté.

14. Pueblo Maimará: Mainly in the Province of Jujuy, adds up to 1,899 individuals. They belong to the Omaguaca culture and their language is Quechua.

15. Pueblo Mapuche: Originally from the Aconcagua area and Isle of Chiloé, they are distributed in the Provinces of Chubut, Neuquen, Rio Negro, Santa Cruz and Tierra del Fuego, La Pampa and Province of Buenos Aires, as well as in Buenos Aires City and Metropolitan Area. They add up to 205,009 individuals and their language is Mapudungun.

16. Pueblo M’byá guaraní: Mainly located in the Province of Misiones, adds up to 7,379 individuals. Their language is M’byá, and also Guaraní.

17. Pueblo Mocoví: Mainly distributed in the Provinces of Chaco and Santa Fe, adds up to 22,439 individuals. Their language is Qom laqtaq, from the Guaycurú language family.

18. Pueblo Omaguaca: Mainly located in the Province of Jujuy, adds up to 6,873 individuals. Their language is Quechua.

19. Pueblo Ona: Located in Tierra del Fuego, Antarctica and South Atlantic Islands, and also in Buenos Aires City and Metropolitan Area, adds up to 2,761 individuals. Their language was Selknam, which is now considered extinct.

20. Pueblo Pampa: Distributed without specify, adds up to 22,020 individuals. Their language is Pampa or Tehuelche.

21. Pueblo Pilagá: Fundamentally located in the Province of Formosa, adds up to 5,137 individuals. Their language is pilagá, belonging to the Guaycurú language family.

22. Pueblo Quechua: Fundamentally located in the Provinces of Jujuy and Salta, adds up to 55,493 individuals. Their language is Quechua.

23. Pueblo Querandí: Distributed without specify, adds up to 3,658 individuals. Their language is Pampa or Tehuelche.

24. Pueblo Rankulche: Fundamentally located in the Province of La Pampa, and also in Buenos Aires City and Metropolitan Area, adds up to 14.860 individuals. They were also called Ranqueles, and their language is Rankulche, related with the Pampa or Tehuelche.

25. Pueblo Sanavirón: Mainly located in the Province of Córdoba, adds up to 2,871 individuals. Their language is Sanavirona, related with the Comechingona.

26. Pueblo Tapiete: This is not an originary group, but descending from a group migrated from Paraguay. They are located in the Province of Salta, and add up to 407 individuals. Their language is Tupí-Guaraní.

27. Pueblo Tehuelche: Distributed in the Provinces of Chubut and Santa Cruz, and also in Buenos Aires City and Metropolitan Area, adds up to 27,813 individuals. Their language is Pampa or Tehuelche.

28. Pueblo Toba: Distributed in the Provinces of Chaco, Formosa and Santa Fe, and also in Buenos Aires City and Metropolitan Area, adds up to 126.967 individuals. Their language is Qom laqtaq, from the Guaycurú language family.

29. Pueblo Tonocoté: Distributed without specify, adds up to 4,853 individuals. Their language was Lule-Tonocoté, now considered extinct. Nowadays they speak their own dialect, derived from the Quechua spoken in Santiago del Estero.

30. Pueblo Tupí guaraní / Chiriguano: Mainly distributed in the Provinces of Jujuy and Salta, Corrientes, Entre Rios, Misiones and Santa Fe, and also in Buenos Aires City and Metropolitan Area, adds up to 3,715 individuals. Their language is Tupí Guaraní.

31. Pueblo Vilela: They are located in the Provinces of Chaco and Santiago del Estero, adding up to 519 individuals. Their language was the Vilela, belonging to the Lule-Vilela group, which is now considered extinct. Their members have adopted the Qom laqtaq, from the Guaycurú language family.

32. Pueblo Wichí: Mainly distributed in the provinces of Chaco, Formosa and Salta, adds up to 50,419 individuals. Their language is Wichí, belonging to the Mataguayan language family.

33. There is an additional amount of 5,301 individuals who were not typified under any defined ethnic group.

As a consequence of this task, it is known that the indigenous population or descendants from indigenous people add up to 955,032 individuals.

According to the criteria adopted when the census was held, “It is considered as indigenous population those individuals who recognize themselves as descendants (because they have any ancestor), or belonging to any indigenous or originary population (because they declare themselves as such).”

The Argentine situation

All aforementioned data are very far of being an adequate situational analysis. They merely constitute an appropriate statistical synthesis, enough to demonstrate that the territory of the República Argentina is constituted, in regards to indigenous populations, by diverse human groups who have diverse procedence, diverse culture, and because of that, diverse needs, believes, perceptions and philosophies.

To all this it must be added the populations introduced since the times of the Colony, conformed by europeans and afrodescendants; and more recently; asians.

About year 1910, because of the celebration of the Independence Centennial, the term “Crisol de Razas” (originated in the ‘melting pot’ expression) was coined, suggesting that the nation was conceived as a fusion of all the ethnic groups inhabiting Argentina, old and new, and that a new homogeneous “Argentine race” might have been created.

Such term proved to be a myth, since that in the more than a hundred years passed by since then, it is very noticeable the differences among immigrants of Spanish or Italian origin, or British, German, French, Israeli, Syrian Lebanese and other proceedings. Furthermore, immigration from other South American countries has also been noted. Criollos, indigenous, mestizos, mulattoes, new and old immigrants who speak tenths of different languages… The population is a real sampler of heterogeneity.

Such diversity or persistent heterogeneity, is partly a consequence of the lack of public policies for social integration. Hence, there is a need to design some kind of guidance or roadmap that allows to start an advance on a road destined to build harmony.

That is why this paper tries to approach a comparison with the methodology used in the People’s Republic of China. Other societies have approached the subject of Interculturality in order to solve problems emerged from the insertion of immigrant groups, being that they already have a defined national identity. It the Chinese case, it is recognized that the national being is multiethnic, so that every intent is made to reckon and preserve each and every one of the groups, in regards to tradition, culture and language.

With the purpose of inspiration, we may quote a fragment from the Introduction to a publication entitled “Intercultural Mediation in the public health environment. Formation Program”.

“The great challenge derived from this change is to accomplish the integration of the parts in a whole in which nobody feels being discriminated because of pertaining to a determined ethnic or cultural minority. Intercultural mediations appears as one of the most efficient answers to promoting the integration of this people into any area of society, such as judicial, scholar, social or sanitary.”

“With the new figure of Intercultural Mediators there has been an intent to cover the needs related with linguistic and cultural differences that deprive access of immigrants to quality public services.”

The challenge

Having accounted that the lack of social harmony arises, in many cases, because of a lack of communication between different entities, having each of them a different cultural background, different customs and needs, and sometimes different languages, we are now in a position to define the problem.

Applying an analysis based on Theory of Human Communication, we might say that the emitter produces a message base on a protocol unknown to the receiver, so that this one is unable to adequately decode the content, and as a consequence, he does not understand, or understands inaccurately.

The final objective is to ease communication, in order to suppress interference and noise, allowing each receiver accurately interpret the message produced by the emitter.

There is a need then, for the intervention of a catalyzing agent, an external entity to control that both sides participating in the communication employ a unified protocol, so that every message sent is correctly interpreted by the receiver. Technically, in a Data Communications environment, this is known as “interface configuration”, “protocol definition” and “data validation”, and such tasks are to be accomplished by this new agent or entity, the Intercultural Mediator.

Competing entities

We have used the term ‘entities’ to encompass the nature of people who might be participating in an intercultural conflict. Physical persons, as individuals, may be in conflict with other pairs, or with ideal or juridical persons. The simplest case should be the conflict between two human beings, but sometimes the conflict arises between an individual and an institution, or between two institutions. Let us suppose, for example, the case of a pupil inside an educational institution, who refuses to meet certain chores, because they are opposed to his own cultural background. Or else, there could be a conflict between a patient and a health institution. In any of these cases, the Intercultural Mediator shall be the one to explore the conflict, in order to contribute to its solution.

As a fact, any type of conflict may have its root in the multiculturality, and it is pertinent to consider the following example from real life:

For example, within a professional team in the media industry conflicts arose between a member of Chinese background and the German members. The Chinese colleague was angry because his work was not valued, and his useful suggestions were not taken into consideration. His colleagues complained that he was not willing to cooperate.

The group’s superior was dissatisfied with the quality of its results, which fell short of expectations, and also with a lack of adherence to deadlines. He reluctantly considered terminating the work contract with the highly qualified Chinese employee.

With dialogue, it was possible to examine the differing perceptions of the situation. Misunderstandings, which were the result of different cultural backgrounds and language difficulties, became evident. Agreements concerning the communication of results and suggestions for improvement were made, and cooperation was achieved.

The Intercultural Mediator Profile

Whoever acts as an Intercultural Mediator should gather a series of credentials or qualities that would allow him to solve the conflict, without being trapped within. Each one of these persons have an individual background that contextualizes his own expectations when dealing with populations of diverse cultural extraction. That is why he or she has to meet some specific attitudes, which if lacked, he or she would not be able to perform the task in an adequate way.

In such respect, there are five basic principles to accomplish in practices by an Intercultural Mediator.

1. Flexibility

is an indispensable trait for an Intercultural Mediator. By flexibility, I mean a type of mental elasticity that allows the mediator to be a part of and yet apart from the cultural milieu into which she has entered. It is that adeptness to know when to question and when to listen, and an inner suppleness that allows the world to be seen as a series of meanings, not facts. Traits associated with this type of flexibility include wonder, awe and creativity. This ability to adapt and adopt is an acquired demeanor.

2. Tolerance

is an underestimated asset for Intercultural Mediators. Tolerance is the freedom from bigotry or prejudice in regards to the views, beliefs and practices of others that are different from yours. Tolerance is also the developed ability to endure and to resist the harmful effects of bigotry and prejudice. Tolerance is often incorrectly viewed as a second class value and less important than the more publicized and recognized relatives: transparency, empathetic understanding and ethnorelative valuing. Tolerance, more than any one single principle, is the one trait that most mediators need to practice on a daily basis.

3. Hope

The mediator should be the lighthouse of hope, a beacon illuminating the rocky shoals of treacherous waters and providing pathways for the parties to explore and travel. Without hope for something that is better than what the parties are currently facing, there is scant reason for the parties to venture out of what is familiar (no matter how dysfunctional and conflict-ridden) to something that is unfamiliar.

4. Respect

allows the mediator to realize that process is negotiable, and that in order to acknowledge and understand the parties’ cultural beliefs and values, the party’s respective cultural protocols must be made explicit and discussed by the parties. In facilitating this understanding and discussion, the mediator provides the opportunity for the building of culturally relevant mediation structures that will reflect the cultural needs and values of the parties. Respect includes understanding that there is a richness of intelligence in the world and that there are many right ways of doing things.

5. Inquisitiveness

is a foundation piece for both mediation practice and intercultural communication theory. Some of the identifying markers are a keen interest in all types of learning: Learning about one’s self, about others, about how others see themselves. An inquisitiveness mediator will study his or her own cultural values and the histories and cultures of others, and will want to know ‘why’ and ‘how’. These are questions that open doors, minds, and hearts.

Intercultural Mediation Environment

In regard to the professional aptitudes with which an Intercultural Mediator should qualify, it is defined that he or she must have a knowledge in techniques of reality analysis, social intervention process planning and group working techniques.

Nevertheless, a series of additional qualifications imply the need of shaping an interdisciplinary committee, or a Mediation Committee, in order to face the challenges implied by this task:

1. Sexual Diversity

So that the team can always count with the gender perspective and the professionals suitable for any occasion, considering that some special cases might arise, such as female abuse, where such female feels more comfortable talking to another woman, or a father-son conflict, where the father feels at ease talking to another man.

2. Diverse political and cultural areas

In order to promote interculturality from inside the team of mediators. In this way, the group is empowered, since there is a chance of sharing different optics and knowledge among the group components.

3. Different disciplines of application

Since different perspectives about working with dissimilar social groups are provided, then there is a need to provide knowledge on subjects such as social and cultural anthropology, ethnology, history, pedagogy, religion, psychology, sociology, etc.:

4. Diverse living experience

Mediators of diverse age or having lived the same experience subject of consultation provide a better way to face the problems to be solved.

5. Language Resources

There is a need to count on resources for interpreting foreign languages, beyond the mere translation, in order to transmit the needs, experiences and uneasiness that trigger consultation.

Conclusion

There is no doubt that Mediation is an efficient tool for conflict resolution, and also an accurate path to obtain social harmony and ease the workload of the judicial system.

The Argentine Republic has become a territory populated by a multiethnic and multicultural society, where conflicts sometimes have their root in the way that “the one” perceives “the other.” Being that all of them inhabit the same territory under equal rights, it is not advisable that anyone presumes to be “the owner” of certain culture or custom, and it is needed then to progress in search of a consensus, in order to define a legitimate national being. Given the characteristics of a society conformed by various social groups of diverse origin and diverse culture, there is a need to further advance in another complementary mechanism for preventing and solving conflicts.

It seems convenient to articulate a control mechanism, focused in detecting and managing such changes, in order to redirect to harmony and equilibrium, contributing to the feeling of peace and justice, and such mechanism may be suitably implemented thru Intercultural Mediation.

                        author

Guillermo Kleinlein

Guillermo E. Kleinlein graduated as Public Accountant, Master in Business Administration, Electronics Technician and Mediator. His activity involves Consulting in Information Technology, Technology Integration, Systems Architect. Since a very young age, he felt a strong attraction to linguistics, learning a variety of languages: Assembler, Basic, C, Chinese, Cobol, English, Fortran,… MORE >

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