Note: In this article, the term “culture” is used broadly and is intended to mean anything and everything related to one’s customs, beliefs, behaviours and habits attributable to the make-up of who they are. It embraces the concept introduced to the writer by legendary professor Michelle LeBaron which appreciates that each individual person subscribes to several different cultures. Any one person may have a cultural component of themselves attributable to their age, surroundings, work, etc.
Afsana Gibson-Chowdhury is the founder of Gibson Chowdhury, Clear Collaborative Mediation and a renowned advocate for equity, diversity and inclusion among legal, dispute resolution and cross-sector professionals. In practice, Afsana has found it of paramount importance to address conflict that emerges through differing points of view early. This can minimize the potential of misunderstanding adding hostility, a risk ever more present when disputing parties lack shared cultural understanding. Afsana’s goal is to “create a safe environment where clients can openly share their views and explore themes of trust and security… drawing similarities can help parties to attach, and appreciate one another emotionally.” It takes an emotionally intelligent person to pick up cues and succeed in creating such shared understanding among parties in conflict.
Gibson-Chowdhury views it as part of the role of the process facilitator to notice and help parties overcome differing cultural views. In the collaborative process of mediation, such understanding is often essential to address a dispute. Establishing a secure space, absence of safety threats is key if a collaborative opportunity is going to be fully embraced. In adversarial proceedings, this understanding is an essential component of fairness. Those participating need to feel heard, objectively judged and offered the chance to put forth their best arguments.
Acknowledging variant cultural understandings is needed to overcome the challenges they bring. Contemporary dispute resolution process facilitators must be sympathetic and attuned to the potential impact of cultural differences amongst those they work with. The flexibility of private dispute resolution processes can help to overcome this, as can societal trends towards inclusion and greater understanding. Of course, obstacles exist on an institutional, systemic basis as well. This results in significant concerns related to fairness.
Imran Kamal is a lawyer who is also a Board Member of the South Asian Bar Association of Toronto. In discussing such obstacles, our conversation started with the classic consideration around eye contact during witness testimony. Imran and I have both worked with people who subscribe to the belief that looking someone with power in the eye is a sign of disrespect. Reconcile that with the notion that credibility and eye contact are related. The risk is that a decision maker may consider a witness uncredible for behaving in a manner the witness believes is conveying respect.
Beyond the formality of a hearing setting, a lack of shared cultural understanding can be problematic at all stages and levels of dispute resolution processes. By way of another example, touching – even a formal handshake – is seen by some as inappropriate and unprofessional. Appreciating that, it can be easy to see how an attempt to work through differences can end before it begins when someone is “left hanging” with their hand extended. They feel insulted while the receiver of the outstretched hand extended at them feels disrespected.
In search of answers for how to navigate varied etiquette between cultures of all types, many feel that there has historically been a view of conformity. That all who engage in conflict resolution in this part of the world are expected to abide by the practices of the once dominant culture. Kamal sees a default interpretation structure as problematic.
I feel that an important component of this consideration is that it goes both ways. We should not assume that others are familiar with the cultural nuances that are second nature to us. This includes not only etiquette but the meaning of symbols and related representations.
My favourite example of this is the mascot of the Supreme Court of Canada. Introduced in 2009, Amicus is a male-identifying owl whose role is to help draw attention to the court system and how it works; serving as a learning aid for educating younger generations.
Dominant society in Canada views owls as wise. That was not the case for me growing up. The term “ullu” was used as an insult within my friend group. The term means owl in Punjabi. It was used as an insult as the South Asian culture to which I subscribe has historically considered owls to be foolish animals (because they sleep all day and are awake at night). While that view may seem foreign to some, I offer Winnie the Pooh to help bridge the gap. The character Owl in the Disney films presents as a buffoon – unaware of the limits of their knowledge. Entertaining to children to be sure, but are those the traits we want to ascribe to the judges who sit on the nation’s highest court?
I am not certain that the intention of Amicus was to have the highest court of the land introduced by a court jester. While not everyone will view the mascot as an anthropomorphic fool, the lesson is to appreciate that we very much live in a society where varied cultures give rise to different interpretations. When it comes to resolving disputes, it is important to be mindful of the potential of this – to promote shared understanding and fairness.
This is not to suggest that dispute resolution practitioners must become fluent in hundreds of different cultures. The suggestion instead is about the importance of checking in on the assumptions we all too easily take for granted. Appreciate that not everyone shares our perspective and understanding. This awareness can help achieve the goal Gibson-Chowdhury suggests for our processes; fostering environments where “there is no devaluation of cultural, political or religious perspectives, and instead a mutual understanding of one another.”
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