Reflecting on a Culturally Competent Mediation Practice

A note on the title.

Mediation practitioners, whether lawyers or non-lawyers, are called to standards of practice that include mediator competence, quality of process, and impartial practice. As a mediation/ADR practitioner for almost thirty years, a program developer, a trainer, and, my favorite role, a manager of staff and more than fifty volunteers who provide mediation services in Western New York, I tend to think in both the macro and the micro in considering how to improve conflict resolution practices. With an individual lens, I strive to critically review my own frame of reference toward better self-awareness and impartial mediation practice that truly adapts to the parties I serve. With a programmatic lens, I build supports for staff and mediators as they engage in the complicated and uncomfortable conversations that we know are essential for real change and growth. As part of all this work, I inelegantly work through my own lens filled with my life experience, my cultural beliefs and values, my conscious and unconscious stereotypes, and so on. The thoughts that follow are not of an expert, but rather a committed learner. As a committed learner, I strive to learn from others and my own experience. Hopefully, my experience can help others learn.

As part of the Community Dispute Resolution Center that serves the eight highly diverse counties of Western New York (an area centered around Buffalo), mere commitment to cross-cultural sensitivity in one’s logic model is not sufficient. Work with action and intention is required to meet outlined mediator standards and ethics. As a practitioner, committing to an intentional, enhanced reflective practice is critical to meet these standards. However, as a program administrator, manager, or developer, adding supported group reflective practice as an expectation and providing varied and frequent opportunities through formal and informal strategies is needed to maintain a culturally sensitive learning environment.

For many of us, the practice of conflict resolution is as much a discipline as an art. Past research outlines the many challenges of trying to use traditional methods to capture, quantify, and critique practices and philosophies that by intention are unique to the specific conflict and participants. This is not so much a practice of “shoulds” as “mights”–and therein lies the opportunity and the challenge.

When the practice, by its very nature, is founded on interventions applied upon the instinct or experience of the practitioner, yet clients represent the dynamic diversity of our communities, the situation is ripe for our own ethnocentric bias to influence our sessions. Whether intentional or implicit, the seepage of our own beliefs about conflict or about communication styles—or more dangerously about culture, race, or gender stereotypes—may result in interventions that impact the self-determination and autonomy of the very conversation that we are committed to support. Our standards of mediator conduct in New York State are clear; we are required to approach each session with competence as to “satisfy the reasonable expectations of the parties.” This defines specifically that we do not hold the lens through which we view our own competence—in fact, the parties hold that lens up for us. It is their perspective that matters.

Reflective mediation practice provides a methodology for the individual practitioner or a trained group to support a review of practice choices with the single goal of a thoughtful, better-informed practice. In his seminal text entitled The Guide to Reflective Practice in Conflict Resolution, Michael Lang outlines a reflective practice model where the practitioner, either in a supported group conversation or through independent journalling, takes an intentional assessment of puzzling or unusual instances in sessions, reflects on their own assumptions about that circumstance, identifies what choice they made in intervening and, finally, considers whether that intervention had the intended outcome. Reflective practice is not a coaching model of debrief. Instead, reflective practice requires the individual practitioner to engage in an introspective review of their own choices in a mediation session with the intention that such insight could influence their future behavior.

What if an enhanced reflective practice model could require mediators to move from simply identifying the assumption or hypothesis that influenced their choice of intervention to thinking critically about how the societal/cultural "rules" that may be a foundation for their personal assumptions directly influence their actions within a session? One might consider from the very beginning of this introspection that what one individual highlights as puzzling or unusual is based upon their own lens of the world. How they see what is “normal” under the circumstances comes entirely from their life experience and learning. Often, what is unusual for one practitioner could be seen as routine or even expected by another. For example, the interpretation of a party’s language as “colorful” may lead one mediator to enforce “ground rules,” another may choose to reflect that same language as a display of critical emotion, and one more may see those strong words as emphasizing a point of great importance to the speaker.

Expanding upon one’s practice in this way is not about judgment of an individual’s experience, lens or worldview. However, as mediators, we must be committed to critical evaluation of where our personal experience has resulted in a set of rules and assumptions for how the world is or should be. If we are not open to that reflection, we should choose to serve our community in a different manner. This is not optional: the result of selected blindness is harmful. Bias and prejudiced thinking often result from these rules being accepted, especially by someone whose rules are in alignment with those of a dominant cultural group and accepted and applied as if true for all. If these rules are the basis for mediator intervention for all participants, mediators will violate their promise of neutrality/impartiality.

As mediators who are open to challenging their views and improving their practices, I would recommend that practitioners and groups take Lang’s reflective practices a step or two further and ask:

1. Why is this situation or interaction puzzling or unusual to me?
2. What personal rule is at the foundation of my selection of this interaction and the hypothesis I use to explain it?
3. Does this rule come from a world view limited by my personal cultural experience?

Sometimes these rules can be subtle (i.e., expert advice should be followed) but sometimes they may reflect an unchallenged belief that is fundamentally racist, misogynist, classist, ethnocentric, or otherwise bigoted (i.e., loud men are aggressive). These rules often do not stand as valid or universal under the scrutiny of honest self-reflection. A critical first step to maintaining a neutral environment and offering competent services is ensuring you are working to observe without judgment rather than unconsciously evaluating what you are seeing. We need to intentionally use our skills to provide space for the parties to share their own rules, their foundational reasoning for the positions they are taking - for it may be there that the true conflict lies.

As practitioners first learn, exploring the deeper interests and needs of the parties below the “waterline” is strategic to move past positional negotiation. Although it has been criticized as limited in its application, the Iceberg Model of Culture shares Edward Hall’s analogy that the external aspects of culture are those that are to be readily observed “above the waterline” on the iceberg. Those aspects that are internal to a culture, those that are deep-seated and often implicitly learned, sit below the waterline. Overlapping our foundational model of conflict theory as an iceberg, where positions rise above the water and interests lurk below, with Hall’s cultural iceberg, the stage is set for a more relativist conflict resolution process. It leaves behind the positions and surface cultural observations and digs deep underneath to uncover core cultural values and thought patterns intermingled with a party’s needs and interests. It may provide additional and new insight into the surface and deep cultural components that impact how communication styles, values, and beliefs may influence how an individual perceives his own conflict and supports his self-determination in both process and outcome.

From a programmatic standpoint, in New York State, the Office of Court Administration issued a requirement that court-connected mediators participate in a minimum of two hours of anti-bias training each year. This is a good start. However, as community-focused programs, we must not end with static anti-bias or cultural sensitivity trainings. After encouraging our mediators to engage in reflective discovery and consideration of their own conflict and communication worldview, we are incentivized to fill in the gaps with resources and perspectives that offer connection to our mediation practice. My experience has been that mediators are, by their very nature, eager and insightful learners and wish for the type of challenge this offers. More specifically, many mediators come to this practice to expand both their professional and personal set of tools to deal with conflict. Once we begin to consider our own set of rules, we can begin to expand our lens, diversify our assumptions, reassess our interventions, and engage in an outcome assessment that may more accurately reflect the experience of the parties.

Mediation programs and associations can support sustained conversations and critical learning by engaging in activities like those described below.

• Keep training. Continue to bring high-quality anti-bias training that applies cultural sensitivity to mediation practice – no more generic lectures. We began with a training approach that included traditional in-service trainings with content area experts but did not stop there. We engaged throughout 2024 with micro-trainings in monthly “Coffee with Colleagues” meetings, began monthly reflective practice groups, and facilitated a book group reflection – all with space to continue the conversations around culturally sensitive practice.
• Mandate and offer high-quality learning opportunities. Training is great – but is not the only way to learn. Get creative in engaging methods and means to grow the conversations. Highlight a podcast. Share an article. Collaborate with another association. Don’t stop if one attempt does not land well – reflect according to the method described above and try again. Our Center is a member of The Association for the Conflict Resolution of Greater New York, and we encourage our mediators to attend their monthly trainings and provide CE credit for doing so. We collect attendance information and share a training report card at the end of each year. Figure out the group(s) or association(s) that work best for you.
• Host book groups. Use articles and books to challenge the thinking of the group. Our recent choices are P. Coleman, The Way Out: How to Overcome Toxic Polarization (Columbia University Press 2021) and T. Kochman, Black and White: Styles in Conflict (The University of Chicago Press, 1981).
• Locate the experts within. If you have made active efforts to ensure your group reflects the community in which you practice, you will have practitioners whose personal or professional expertise may broaden the perspective of the group. For example, a practitioner for whom English is a second language, who is an advocate for individuals with intellectual and developmental disabilities, or who teaches cultural sensitivity at a local university can become key training partners. Invite but don’t rely – privately invite them to share their expertise with the group but recognize that it is not their responsibility to educate. Take their recommendations on articles, books, and speakers to further the learning opportunities for the group.
• Start a reflective practice group and become a certified group leader. Ensure that your community has frequent and intentional spaces to share practice challenges with support and without judgment. The Reflective Practice Institute has courses to certify reflective practice group facilitators. Encourage your organization to make a financial and time commitment to having an embedded facilitator. Doing so can make this practice a part of your internal practice dialogue in a way that we find flows naturally into conversations with our practitioner community.
• Have coffee with colleagues. Look for opportunities to gather as a group and have “micro” conversations on critical topics. Our 90-minute, third Friday of the month “Coffee with Colleagues” agenda includes 10 minutes for program updates, 40 minutes for practice review, and 40 minutes for recent case debrief. In the past year, we have had a multi-part series on the basic tools of several mediation philosophies (Transformative, Facilitative, Narrative, Solution-Focused, and Non-Violent Communication) and a three-part series on skills for dealing with difficult parties, attorneys, and cases.
• Develop mediator standards that require participation in these educational programs and stand by them.

As practitioners and programs, we must engage in continued introspection and evaluation of our practices within the mediation session. This is critical for maintaining our neutrality as we are trusted with conflict stories that impact the most personal areas of our community’s life. We must have difficult and uncomfortable conversations with ourselves and each other before we can ask our community to trust us with theirs.