Mediating Interpersonal and Small Group Conflict. Cheryl A. Picard

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СКАЧАТЬ a complaint based on the fact that a disproportionate number of clients referred to ADR programs are from poor, black, and female groups (Jaffe, 1983; Tomasic and Freely, 1982). ADR is also criticized for creating more institutions of political control than empowering alternatives (Hofrichter, 1987). In addition, there are complaints of legal rights violations, exploitation, coercion, and expansion of state control into private lives (Kressel, et al, 1989). Thus, it is said, only formal procedures, based on rules of evidence, can require compliance with decisions, and only legalism can protect the less powerful (Roel and Cook, 1989). Further, informal practices were faulted for not living up to their claims of reducing the burden and size of the legal apparatus and were accused of widening the net of social control. Harrington’s (1985) work, which pointed out that few of those referred to mediation would ever have had a court hearing, supported this conclusion. Although it was agreed that ADR was more humane, responsive, and participatory, opponents argued that it marginalized certain crimes and did not have any long-range impact on the distribution of power or on the high cost of the legal system.

      Other lines of attack saw informalism as augmenting oppression by reinforcing patriarchal and middle-class values. Women’s rights activists express concern that through mediation women may lose their leverage in bargaining and receive less in the way of settlement than would be offered through formal court processes (Rachofsky, 1985; Hart, 1990). They also argue that a more sophisticated understanding of power is required for mediation to serve the interests of women (Shaffer, 1988), and that mandatory mediation is especially harmful to women (Grillo, 1991). Informal dispute resolution processes were believed to suppress social conflict through the rhetoric of harmony ideology (Nader, 1991). ADR was accused of being susceptible to domination by stronger parties, and programs were criticized for diverting resources and attention from needed court reforms. ADR was deemed inadequate, and despite its flaws, the court system was said to remain the best provider of justice.

      While the ideals of ADR may not have been fully borne out, it is fair to say that in a relatively short period of time, alternatives to the traditional trial have become a significant factor in modern day dispute resolution. As ADR continues to grow in popularity, advocates will no doubt continue to seek to improve its procedures and techniques.

      Of all of the ADR processes, mediation has received the most attention and is said to have emerged as the single most powerful tool in the alternative dispute resolution movement (Bush and Folger, 1994).

Restorative Justice

      Restorative Justice is the popular name given to recent approaches to justice that aim to involve all those directly affected by a crime in such a way that the outcome seeks healing and reconciliation rather than retribution. Examples of these approaches include community sentencing circles, family group conferencing, and victim-offender mediation programs. Sentencing circles allow court officials, victims, offenders, community elders, and other community members to discuss together the impact of the crime and explore ways of dealing with the aftermath. Restitution and reintegration are high priorities. Family group conferences involve a trained facilitator to help victims and offenders and their families along with professionals, such as social workers and police officers, talk about the crime and appropriate reparation. They often evoke a sense of shame to show disapproval for the act (not the person) and a welcoming of the offender back into the community. Victim-offender programs are perhaps the best known and most widespread restorative justice initiatives. They allow victims to confront their offender about the harm done and offenders to take responsibility and make reparation for their actions in the presence of a skilled mediator. Three principles are said to form the basis of restorative justice: 1) crime is a violation of a relationship among victims, offenders, and the community; 2) restoration involves the victim, the offender, and community members; and 3) a consensus approach to justice.⁵

Conflict and Culture6

      Recent research in the field of conflict studies has focused on the links between conflict and culture. Culture, in this instance, refers to race and ethnicity; although when broadly defined, it can include gender, age, socioeconomic status, sexual orientation, educational levels, and physical ability. Culture helps to create a system of meaning that must be understood in order to contextualize conflict, identify the parties involved in a conflict, determine how to approach and enter a conflict, and recognize how the conflict is best resolved. While culture alone does not determine individual behaviour in conflict, it does shape the ways in which conflict is viewed, discussed, and resolved (Avruch & Black 1993).

      Culture provides a “lens” through which conflicts are perceived and interventions or reactions are developed. Issues that arise when cultural analyses are applied to conflict are varied. What constitutes a conflict is the starting point for a cultural understanding of conflict. While denial or avoidance of conflict seems to be common across all cultures, it is extreme in those cultures that privilege harmonious over conflictual conceptions of the world. Parties to a conflict can include those directly affected by events, as well as those indirectly affected. Cultures where individuals see themselves as members of groups, such as families, clans, or communities, tend to consider all members of their group when they assess the impact of conflict and its favoured outcome. Approaches to conflict and preferred intervention styles also vary depending upon the culture. Some cultures prefer direct and open confrontation, while others rely on third parties to delicately broach the subject of contention, without joint sessions, in order that both parties can save face. If intervention is preferred, who intervenes becomes a question. Should the intervenor be someone close to and knowledgeable about both parties, or a “neutral and impartial” stranger? In some cases, intervention may not be perceived as the best strategy since the conflict may improve over time without any attention. Finally, culture will influence whether a resolution is understood as fair and equitable. In addition, the formality of resolution will be shaped by its cultural context.

      G. Hofstede (1980) has identified a spectrum of cultural differences for understanding workplace patterns of behaviour. This spectrum, modified here, is based on dimensions of differences that are specific to cultures, such as whether individualist-collectivist identities are evident; high-low tolerance for ambiguity, whether change is tolerated; high-low power distance, where hierarchies and traditions are either rigid or flexible; and masculine-feminine values, whether nurturing or assertive behaviours are common. These constructs are reflective of patterns for processing information and evaluating events within a cultural context.

      When working in intercultural conflict resolution, several challenges face the intervenor. The first is establishing connections with the parties in dispute in order to enter the conflict. An intervenor must establish the trust and confidence of the parties. This can result in lengthy meetings to talk about the situation, where the conflict itself does not come up for discussion until many hours have passed and the party or parties have developed confidence in the intervenor. In the second instance, once trust is established, the intervenor needs to show some authority in her or his intervention. The parties in conflict need to believe that the intervenor can help influence the other party and assist in settlement. Thirdly, the intervenor must recognize the possible involvement of others not directly involved in the dispute and invite or encourage them to participate in its resolution. The fourth consideration for the intervenor might be the parties’ disinterest in face-to-face confrontation. The intervenor may be required to assist through a conciliation model, as opposed to a joint session of mediation. John Paul Lederach (1982) proposes that a more elicitive model of conflict intervention be developed in conjunction with the disputing parties. Instead of prescribing a particular model of conflict resolution for the parties, the intervenor might need to construct a new model, with the parties’ input, in order to assist in resolution. Finally, the intervenor should expect flexibility with respect to the formality of the agreement. Under no circumstances should a conflict intervenor expect a formal, written agreement. This may not be desired by the parties.

      While intervening in conflict where cultural differences are evident, an interactive analysis of the conflict and an exploration of resolution methods must be undertaken СКАЧАТЬ