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Competent and sensitive mediation and arbitration

Is there indeed a need for culturally sensitive mediation?

Before answering and dealing with the above question, and in order to put this matter in order, it is necessary to answer 10 preliminary questions, which sometimes sound hypothetical, clear and self-evident:

  1. What does the term culture mean?
  2. What is ‘culturally sensitive’ mediation? What do you mean by culturally sensitive mediation?
  3. Why is culturally sensitive mediation required?
  4. What does culturally sensitive mediation serve and promote?
  5. Is there currently a culturally sensitive mediation?
  6. What is more correct to say culturally sensitive mediation? Or culturally competent mediation?
  7. Is special training required for mediators in imparting culturally sensitive mediation skills?
  8. What does this training include? What content? Who will train and promote the disciplines of cultural sensitivity in mediation?
  9. In the State of Israel, is there a need, and even an obligation, to develop the field of culturally sensitive mediation?
  10. In what type of mediations, and with which mediators, is skill and braininess in cultural sensitivity not required in mediation?

Regarding the first question dealing with the interpretation of the ‘concept of culture’, the researchers (Kluckhohn, & Kelly, 1945), (Geertz, 1973), (Rosaldo, 1984), considered culture as a common learned form of life that is transmitted in a symbolic way and affects all aspects of human life. At the basis of this definition, recognition of the existence of human difference. The researcher Mautner defined culture as a system of meanings, and as such it is built from content through which people perceive and evaluate their identity. their status in society, what is happening in their lives and their goals. These contents also help a person define his mental experiences, the goals he seeks to achieve in his life, his relationships with other people, as well as the natural world and his place in it. The content of culture equips human beings with a collection of patterns that allows them to orientate themselves in the world, organize the practices of their behavior and determine the limits of the intellectual, emotional and moral world in their lives (Mautner, 2012, p. 42).

Regarding the second question ‘What is culturally sensitive mediation?’ In fact, in its contents and the discourse within it, this is a sensitive mediation that is different from any other mediation procedure, this mediation recognizes and overwhelms the element of human diversity among the parties being bridged, aware of the existence of a different and hidden way of life, which is conveyed in a symbolic way and affects all aspects of other ways of coping and in particular different ways of coping with problems and conflicts in the lives of the parties involved. The difference in ethnic, class and even socio-political identity, among the mediation participants, leads to a difference in verbal discourse, a difference in modes of belonging, a difference in dealing with and defining individual and collective goals, a difference in perceptions and inner mental experiences, and a wider difference in religious, value, moral perceptions, and perceptions of the world and human nature as a whole All of the above elements may often have an unscientific and covert effect, creating unpleasant, unpromoting and, in more complex cases, discriminatory and unjust mediation experiences among mediators from different cultures.

Regarding the third question, ‘Why is culturally sensitive mediation required?’ In fact, culturally sensitive mediation comes first and foremost in order to bridge the difference and the visible and hidden cultural human gaps between bridged parties coming from different ethnic groups. These gaps may arise in light of the mental differences between the parties bridged by ethnic identity, language; in religion and religiosity; in values; in morality; in positions; In perceptions, in social and socio-political status. As noted and emphasized, absurdly, the influence of most of these elements (except the language element) is at an unconscious and hidden level, both for the mediators who come from another culture, and also for the bridged parties. A mediator who is not well aware, and does not refer directly and indirectly to these elements, may reach the end of the mediation with or without an agreement between the mediating parties, but all the parties, or some of them, will still have the feeling that something is not right! And something streaky and not sufficiently proper and satisfactory in the mediation process and its results. Below I will try to illustrate this with a small example, the Arab Muslim minority is considered a patriarchal-collective minority, which emphasizes the importance of authority and receiving authority from the other, especially from the professional, and in his case the mediator who is perceived as known, guiding and directing. In contrast, a mediator coming from an individual western company may resort to the mediation procedure using the technique of neutrality in the mediation meetings. Delegates from an Arab company will expect involvement, less neutrality, guidance, and even in some cases to direct and make decisions in their place. And in fact, a mediator from a western company may, by taking the word neutral approach, create frustration, dissatisfaction and even in some cases disdain for the process and the essence of the mediation process as a whole.

Regarding the fourth question, ‘Who does culturally sensitive mediation serve?’ Culturally sensitive mediation comes to serve everyone, starting with the mediated parties, continuing with the mediators, the court, and society as a whole and including it. Mediation – this will not only ensure the success of the mediation with or without the drug, and the creation of a relaxed, respectful, inclusive and accepting atmosphere, but it is supposed to create more and more an atmosphere of brotherhood, respect and inclusion towards the different, the stranger and the other in society and the community.

Regarding the fifth question, ‘does culturally sensitive mediation exist today?’ First, I am reluctant to answer yes or no to this question, at the same time I believe that such mediation exists in a very partial, random and spontaneous manner, is not based on clear and transparent professional assumptions, and from a procedural point of view is unstructured and unsatisfactory.

In relation to the sixth question, I believe that it is professional and more correct to say ‘culturally competent mediation’ than ‘culturally sensitive mediation’. The use of the word ‘sensitive’ may miss the emphasis and the professional and expected built-in aspect of mediation. The word sensitive may imply subjectivity, and the word competent emphasizes focused aspects, ie what you will and will not do during a culturally competent mediation. And in fact, as a service, it implies the reliability and validity of the mediation process.

Regarding the seventh question that deals with ‘in the context of the need for special training in cultural competence in mediation’ there is no doubt that mandatory training in cultural competence is required among mediators. Such training must be structured, focused, with a practical illustration of what may happen and develop in the procedure and in the mediation room. I will illustrate this with an example theme of the meaning, value and perception of ‘time’ in different cultures and minorities, and the effect of this on the culturally appropriate mediation process and meetings. Thus, among the traditional and conservative Arab minority, there is a more fluid, flexible, abstract perception of time. On a technical level, this perception may manifest itself in difficulties in meeting the organization’s timetables in the mediation meetings, in delays and delays in arriving at the meetings, and in observing a mediation process that is more spread out over several meetings, and not limited and limited to only one or two mediation meetings. And in fact, strict timetables in mediation may actually drive away the mediators who come from among ethnic, conservative, oriental and traditional minorities.

Regarding the eighth question, which deals with qualifications: What does training in cultural competence include? What content? Who will train and promote the disciplines of sensitivity and cultural competence in mediation. In my opinion, sensitivity training may include the rest of mortality and topics such as: collectivity and patriarchy in ethnic minorities and its effect on the mediation process / objectivity and subjectivity and its effect on mediation / socio-political tension and the degree of influence on mediation / strategies and tactics in culturally sensitive mediation / implementing the forgiveness process in culturally sensitive mediation / Gender and culturally sensitive mediation/ the narrative school as a leading school in culturally sensitive mediation, etc… It is mandatory that the training be carried out by universities, colleges and academic institutions that specialize not only in mediation studies, but with background and expertise in practical applications in mediation. The teams in charge of transferring such kashrut must reflect and represent as wide a variety of ethnic minorities as possible: Arabs, Ethiopians, Ashkenazi, Sephardic, Russians, Haredim, advocates, Druze, women, men, etc… The more diversity there is in the representation of the teams and the less Uniformity, thus deepening training and emphasizing practical skills in competent and culturally sensitive mediation will be guaranteed.

Regarding the ninth question, which deals with the question of whether competent and culturally sensitive mediation is required and mandatory in Israel?, the answer in my opinion is definitely ‘yes’. And even more than that, any mediation process that takes place in Israel between two parties from different ethnic and cultural groups, which is not aware of, refers to and aims at sensitivity and cultural competence. At best, it is a ‘defective’ mediation, and at worst, it is a mediation doomed to failure, and this is a flight in which the parties sometimes manage to reach an agreement. It is important to clarify and emphasize that in mediations between parties from ethnic groups where agreements are quickly reached, this may certainly cause concern that the mediation is deficient and not qualified and culturally sensitive. This is due to disconnection, lack of training, suspicion, lack of communication which lead to the need for a ‘desire’, and a desire to end the conflict and reach an agreement at any cost.

And finally, in connection with the tenth question, which deals with the differentiating and sharpening question in which mediations is neither expected nor required training and cultural sensitivity? In my opinion, cultural competence and sensitivity is expected and required of any mediator, but at the same time in mediations between similar and very homogeneous parties and mediators, cultural sensitivity and competence is neither expected nor required. Thus, if mediation takes place both between mediated parties and with mediators from the Arab Muslim population, then cultural competence and sensitivity is not required. Along with this, if, for example, there are men / women among the bridged and bridged parties, or alternatively parties speaking different languages, it is mandatory to show competence and cultural sensitivity. In my opinion, in the State of Israel with the great variety of different cultures, species and languages, the chance of having a diverse and uneven mediation both among the parties, and among the mediators is great, as in a situation where there are large gaps in the detectors of the bridged parties and the mediators. And therefore the more correct assumption sharpens the need and necessity in any case for sensitivity and cultural competence.

List of sources – culture

 

Mautner, M. (2012). culture. Studies in Cultural Studies, 1, 31 – 66.

Kluckhohn, C., & Kelly, W. H. (1945). The concept of culture. In R. Linton (Ed.), The science of man in the world crisis (pp. 78 – 105). New York: Octagon.

Geertz, H. (1973). The interpretation of cultures. New York: Basic Books.

Rosaldo, M.Z. (1984). Toward an anthropology of self and feeling. In R. A. Shweder & R. A. LeVine (Eds.), Culture, theory: Essay on mind, self and emotion (pp. 137 – 157). Cambridge: Cambridge University Press.

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