By Reid Hou
UNSW Student and ADC Intern

Australia is a multicultural society, now more than ever. As of the 2021 Census, over 27.6% of the Australian population were born overseas, with 22.8% of Australians using a language other than English at home.[1] It is therefore increasingly necessary for mediators to develop capacity to account for such cultural differences. This article aims to provide some basic recommendations, drawn from scholarship, for doing so.

It is important to note that preferences between culturally and linguistically diverse (CALD) groups themselves differ between and even within groups. Although some may favour culture-specific dispute resolution processes, others simply prefer mainstream dispute resolution.[2] It is unnecessary to have a thorough understanding of many different cultural groups. Rather mediators can more effectively respond to cultural difference if they develop a general sensitivity to and awareness of the relevance of different cultural styles on communication.[3] The cultivation of a framework for thinking about culture assists in this, and can include:

  • An appreciation of conceptual complexity
  • A critical stance toward stereotyping others
  • A capacity for empathy
  • A critical awareness of one’s own ethnocentrism, or cultural background
  • A tolerance for difference plus a capacity to suspend judgment
  • Skills in collaborative problem solving[4]

A widely accepted analytical tool in relation to culture is the classification of low-context, individualist cultures and high-context, collectivist cultures. Low context cultures engage in more direct communication and self-oriented, whilst high-context cultures tend to use indirect communication methods and be more group or relationship-oriented.[5] Lau gives several key elements for mediators to be mindful of when mediating in a cross-cultural setting.[6]

Participants’ Perception of Conflict: Western culture views people as being separate from a given problem. However, this can result in the role of interpersonal relationships between parties being neglected. Other cultures may give equal attention to the person and the problem, and this difference in perception should be managed.[7]

Participants’ Expectations: Gaining an understanding of participants’ expectations in undertaking the process is central to all mediations. However, this is especially so where there are differing cultural assumptions. For some, mediation may be more about opening lines of communication, whereas others will only view a mediation as successful if the matter has been resolved. This may extend to expectations of the mediator themselves. Although the mainstream approach is to allow for parties to discuss and ideate between themselves, others may expect advice and solutions from the mediator.[8]

Participants’ Use of Gestures/Words: Different cultures may have different meanings on the usage of words. For example, an apology may be synonymous with an admission of liability in the United States, but not so in other cultures. While low-context Western cultures will often speak directly, high-context cultures may communicate more indirectly. It may therefore be necessary for a mediator to understand the wider context to understand the message being communicated. Body language and behaviours like eye contact, questioning styles or vocal tones may additionally mean different things in different cultures.[9]

Participants’ Negotiating Styles: This may vary widely between parties. For example, parties are generally asked to be respectful and avoid interrupting the other party, yet interruptions may be an acceptable element of conversation in some cultures. Some cultures will see arguing as a sign of closeness, where others cannot work in a situation where there is an open display of emotion. Ascertaining and setting expectations on negotiation styles is thus seen as an essential skill of the mediator.[10]

Involving Others in the Process: Western culture tends to prefer “directness, specificity and frankness“, where each person makes their own decision and takes ultimate responsibility. However, other cultures may favour a more “indirect, ambiguous, cautious and non-confrontational approach”, and will tend to involve others more in a decision-making process.[11]

Saving Face for Participants: Mediators should ensure that there are processes for disclosing information without losing face. This is particularly so for Asian cultures (having regard to the individual preferences of parties). Traditional methods of active listening like summarising and repeating back what has been said may not be appropriate, as direct expressions of emotion may cause loss of faith.[12]

Mediation Methods and Process: Applying the same method or formula to all cultures is not appropriate. The traditional method of the mediator outlining the various stages of mediation and progressing according to that roadmap -rigidly framing discussion around these stages – may be limiting in some settings. Greater flexibility may be required. For example, Asian cultures may focus more on building trust which may take a greater proportion of the process, whereas Western cultures may focus more on swiftly exploring options and testing proposals.[13]

Use of the Pre-mediation Conference: Pre-mediation or preliminary meetings are an important first step in the mediation process. In a cross-cultural, it is important to use this time to ascertain expectations, etiquettes and assess the interests and needs of parties.[14]

Use of Co-Mediators: It may be worth considering the use of a co-mediator. This can be helpful to parties, such as where they wish for a mediator of the same cultural background to be present to avoid any perceptions of unfairness or bias. Party preferences should be explored as to whether they wish for a single or co-mediation.[15]

In Australia’s multicultural society it is necessary for mediators to have cross-cultural capacity. This article has aimed to provide a general overview and a starting point for approaches to cultural competency in a mediation setting. In particular, the adoption by mediators of a framework for thinking about culture and the use of elements given by Lau were covered. It is hopeful that these will be useful to mediators as they continue to learn and grow within this space.

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[1] Australian Bureau of Statistics, ‘Cultural diversity of Australia’, Census 2021 (Web page, 23 July 2024) <https://www.abs.gov.au/articles/cultural-diversity-australia>.

[2] Lola Akin Ojelabi, ‘Adopting culture-specific dispute resolution processes in Australia: Which way forward for access to justice?’ (2015) 29(1) Australian Journal of Family Law 235, 235.

[3] Susan Armstrong, ‘Developing culturally reflexive practice in family dispute resolution’ (2011) 22(1) Australasian Dispute Resolution Journal 30, 32.

[4] Ibid 33.

[5] Lola Akin Ojelabi, ‘Adopting culture-specific dispute resolution processes in Australia: Which way forward for access to justice?’ (2015) 29(1) Australian Journal of Family Law 235, 244.

[6] Kelvin Lau, ‘Mediation in a cross-cultural setting: What a mediator should know’ (2014) 25(4) Australasian Dispute Resolution Journal 221.

[7] Ibid 228.

[8] Ibid.

[9] Ibid.

[10] Ibid.

[11] Ibid 229.

[12] Ibid.

[13] Ibid.

[14] Ibid 230.

[15] Ibid.