Enacting and reproducing social and individual identity through mediation by HELENA NEVES ALMEIDA

Enacting and Reproducing Social and Individual Identity Through Mediation HO-BENG C H l A CHEE-LEONG C H O N G J O O - E N G LEE-PARTRIDGE CHANTEL C H U SHI HWEE S H A R O N FRANCESCA KOH WEI-FEI

Mediation practicesplay a major role in shaping and defining cultural and individual iC(anti9 Thty are essentially social processes that embody the lanpge, .rymboh, rimh, practices, and values of culture and at the same time create them. From examination of the discourse and stylized idioms used by Chinese-Malaysian mediators, cultural embodiment and reproduction were evident in their practices. In fact, thegoah, values, and roles of the mediators and enactment of the mediation process as a social exchange stand in marked contrast to the normative modd of mediation encouraged by h w y e n Engaged in Alternative Dispute Resolution (LEADR) and Cbarlton and Dewdnty (1995).

xisting mediation models that are increasingly being adopted in nonWestern cultures (Lund, Morris, and LeBaron-Duryea, 1994) have typically originated from the formal Western justice system. Imbibed with Western values of individualism and narcissism, they are often institutionalized as part of the court procedure (for instance, in the court processes in Singapore; Lim and Liew, 1997). This adoption is driven partly by the desire to model the successhl nations and partly by pressures from dominant nations such as the United States and those in Europe. Yet to date many of these models have been shown to be inadequate (Barsky, Eite, and Collins, 1996; Jandt and Pedersen, 1996; Rabbie, 1994) and frequently inappropriate. Researchers argued that this is due to the CONFLICT RESOLUTION QUARTERLY, vol. 19, no. I Fall 2001 0 John Wiley & Sons, Inc.

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incompatibility between the cultural values and symbols inhsed in these mediation models and those of a non-Western culture. For instance, norms of distributive and procedural justice are perceived differently according to the society (Herman, 1987; Kochman, 1981; LeResche, 1990). Conflict resolution procedures also may be valued differently. For instance, the Chinese see mediation as the primary dispute resolution process whereas many Western societies view mediation as an “alternative dispute resolution” process (Hunter, 1995; Wall and Blum, 1991; Wolski, 1997). Couple this with weak compliance on agreements reached through these transplanted models (Lund, Morris, and LeBaron-Duryea, 1994) and it is not surprising that there is a widely held perception of mediation being ineffective Uandt and Pedersen, 1996). This study began from the premise that mediation practices are social processes that play a major role in shaping and defining a community’s cultural identity. They embody the language, symbols, rituals, practices, and values associated with that culture. Institutionalization of “foreign” models of mediation not only deprives the local community of a mechanism for propagating culture but may also dilute or replace traditional values. However, to have mediation models that are culturally applicable and appropriate, it is necessary to understand how culture influences dispute resolutions. A few recent studies on Asian mediation practices, by Wall and his colleagues, among Chinese, Japanese, Koreans, and Malay-Malaysians have examined displites that were mediated in these communities, and the categories of techniques and strategies used (Callister and Wall, 1997;Wall, 1993;Wall and Blum, 1991 ;Wall and Callister, 1999). However, these previous studies have focused on categorizing practices or activities performed and documenting frequency of usage through counts. Our study complements the others by looking at the meaning of some of these practices as seen through the eyes of people immersed within the culture. For instance, qualitative information illustrated and clarified what Wall and his colleagues categorized as “educate,” “argue for concession,” “critique,” and also the notion of “face.” Our m d y adds details, depth, and meaning by looking at the symbolic relevance of the processes and language that mediators use. To accentuate these unique features of ChineseMalaysian mediators, we have contrasted them against those of the Lawyers Engaged in Alternative Dispute Resolution (LEADR) model. LEADR’s model qualifies as facilitative mediation, which falls on one end of a wide spectrum of mediation models and practices. In facilitative mediation, the mediator is primarily a facilitator who creates the necessary

Enacting and Reproducing Social and Individual Identity

conditions for the parties to meet and conduct their own negotiation, with occasional but relatively low levels of intervention. O n the opposite end of the spectrum lies the evaluative model, where the mediator actively proposes and encourages parties to accept settlement after assessing the relative strengths and weaknesses of the parties’ statements (Brown and Marriott, 1993). LEADRs model has been chosen as a focal point of comparison for two reasons: (1) facilitative models are ofien regarded as the “classic mediation” model and are being institutionalized within the legal system of Malaysia and Singapore; and (2) LEADR has been particularly active in training mediators in this region.

Mediation as Culture and Social Interaction Anthropologists, sociologists, and social psychologists drawing from the symbolic interactionist‘s perspective (for instance, Hogg and Turner, 1987; McCall and Simmons, 1978; Turner and Oakes, 1986) argue that culture is both a product of social interaction and a context that influences it. Cultural elements such as values, beliefs, and taken-for-granted assumptions about how things should be done form an integral part of community and individual identity. These self and social identities in turn heavily influence the individual’s response to an issue (Hoggand Turner, 1987; McCall and Simmons, 1978; Turner and Oakes, 1986). People make subjective sense of events around them to achieve understanding (Berger and Luckmann, 1966; Mead, 1934). This subjectivesense making of (and response to) events is unique in each culture and heavily influenced by what is learned from the community that people live in. As an example of culturally shared meanings attached to acts, processes, and events, consider a typical Mori first-encounter ritual, where a very aggressive war dance is performed and at the end a member of the war party throws a spear to the ground. To most other cultures, picking up the spear would be interpreted as an aggressive act, but in the Mori ritual the exact opposite action is expected; the “foreigner”is expected to pick up the spear as a peace-making gesture. Similarly, a mediation process can be seen as comprising social interactions that are the products of culture and that at the same time create culture. This influences how a dispute is perceived and handled, and why it is handled differently according to culture. It is possible to elicit a representation of the cultural elements of mediation by drawing upon the experiences of the mediator, the key participant in these processes.

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Method

We began by constructing case studies of how Chinese-Malaysian mediators resolve disputes, with the focus on the cultural elements embedded in mediation practice. We then framed and compared the documented practices with a dominant Australian mediation model. Attention was paid to the discourse of the mediators and the language they used, in particular the stylized idioms used in mediation. Finally, we capitalized on our identity as Chinese Asians to translate and interpret these symbolic idioms. This study does not aim to test causal relationships, but rather to discover the nature of phenomena as humanly experienced. Hence, we adopted a qualitative approach to build theory in an area where little data or theory existed (Babbie, 1998; Mason, 1996). Minichiello, Aroni, Timewell, and Alexander (1990) argued that qualitative methods allow the researcher to gain access to the motives, meanings, actions, and reactions of people in the context of their daily lives. This methodological approach, without relying on predetermined and fixed application of the predictive and prescriptive requirements of the quantitative methodologies, facilitates understanding of the informantsâ&#x20AC;&#x2122; perceptions. We selected participants who were steeped in the culture and had acted in the role of mediators. In this sense, the choices met the criteria for â&#x20AC;&#x153;extreme casesâ&#x20AC;? in which the process of theoretical interest is more transparent than it would be in other cases (Eisenhardt, 1989). Background

Malaysia, a multiracial society, is located in Southeast Asia. West Malaysia consists of the peninsula of Malaya, south ofThailand; East Malaysia comprises the northern territories of the island of Borneo. Ethnic Malays form the majority, with 59 percent of the population. Ethnic Chinese are the next largest group, making up 32.1 percent of the 16.5 million people. Malays are the native people, while the Chinese immigrated mainly from the southern provinces of China throughout the British colonial rule beginning in the early nineteenth century. During colonial rule, the Malay sultanates continued to exercise their traditional political powers while the Chinese primarily engaged in economic activity. As a result, prior to independence in 1957, the Chinese controlled most of the economy and the Malays controlled most of the political structures and power. After independence, a New Economic Policy was formulated in an

Enacting and Reproducing Social and Individual Identity

effort to balance political and economic power among the major ethnic groups: the Malays, Chinese, and Indians. The Chinese divested substantial amounts of their economic control in exchange for guaranteed representation in the federal coalition government. In that process, the Malaysian Chinese Association (MCA), once an ethnic self-help and trade association, was transformed into the dominant political party representing the interests of the ethnic Chinese. Today, the MCA remains a partner in the ruling coalition government of Malaysia that has governed since independence from British rule. The power-sharing arrangements resulted in political and governance structures that run along ethnic lines. For instance, at the community grassroots level the Malay and Chinese communities have their own village leaders even though they may be living in the same district. This unique blend of politics and ethnicity reinforces ethnic boundaries. Compared to Chinese-Singaporeans, Chinese-Malaysiansseem to consciously emphasize their ethnicity and values. This is a significant contrast, since the Chinese populations of both countries shared a common history until 1968, when Singapore departed from the Confederation of Malaysia. Certainly, part of the difference is that Singapore is a city-state with an open economy and is therefore subjected to external influences and change. However, it is equally likely that the political and governance structures existing within Malaysian society heighten the sense of ethnicity and the need to reproduce that ethnic identity. Informants

Informants in this study were drawn mainly from a group of Chinese village leaders, and also from members of clan associations and religious organizations. The twenty Chinese male Malaysians had an average mediation experience of 10.7 years; the mean age of these informants was 5 1.4 years. The mediators were mainly from the south and southwestern states of the Malaysian peninsula. Twelve were chun zhang (village leaders), four were members of a Buddhist organization, three were vice presidents of clan associations, and one was the president of an association. All were affiliated with the dominant Chinese political party, the MCA. These mediators handled a range of disputes within their community: between family members, neighbors, and business partners, as well as in criminal incidents of petty theft and assault.

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Data Sources

Data for the study were obtained primarily through semistructured interviews conducted in a conversational pedagogy. The interviews were highly interactive, with the informants given substantial leeway in shaping the conversation. A question guide consisting of open-ended questions served as a checklist for capturing the relevant experiences, insights, and perspectives of these informants (see the appendix to this chapter for the interview guide). Mediators were asked to recall a mediated dispute, the mediation process, and specific measures taken to resolve it, along with their roles, responsibilities, and objectives as mediator. The interviews, ranging from one to two hours, were conducted at the interviewees) office, home, or clan association. The interviews were in the language that the informants felt most comfortable with, mainly Mandarin but a few in English and other Chinese dialects. With the informants’ permission, the interviews were audiotaped and subsequently translated into English, as close to verbatim as possible. Data Analysis

To examine the cultural dimensions of mediation processes, we used the training model advocated by the dominant professional body for mediators in Australia (Lawyers Engaged in Alternative Dispute Resolution, or LEADR) as the framework to identify and compare underlying assumptions, values, and procedures. LEADR certifies most of Australia‘s mediators and is active in training mediators in the Asian Pacific region. LEADRs model of mediation is very similar to and fairly representative of many models of facilitative mediation found in the United States and the United Kingdom. Three of the authors received mediation training through LEADR two of us are also actively involved in teaching negotiation and mediation at the undergraduate and postgraduate levels and in nonprofit organizations. From the training and teaching materials, the authors listed the key processes, values, and assumptions embedded in LEADRs model of mediation. These formed the categories for comparison with the interview data. The transcribed interviews were then coded, and phrases that were relevant to the categories were extracted. In particular, the researchers were looking for “symbolic idioms” that embedded Chinese values. This paper presents the findings of the analyses.

Enacting and Reproducing Social and Individual Identity

LEADR’sModel

Figure 1 shows a seven-stage model found in LEADRs training manual and in Charlton and Dewdney (1995):

1. Mediator‘s opening statement

2. Parties’ statement

3. Issue identification 4. Issue exploration and clarification

5. Private sessions 6. Final joint session or final negotiations

7. Closing Embedded Values and Assumptions

Here are the salient values and assumptions of this normative model:

Mediator azfdcilitator. The mediator’s role is not to create a solution and promote it. Rather, it is to keep the parties engaged in problem solving and assist them in finding a solution that accommodates their needs. Generally, the mediator should avoid giving personal opinions (Leviton and Greenstone, 1997; Charlton and Dewdney, 1995). Individualism and individual interest. Individual’s interest prevails as disputants discuss what is good for themselves. Independence andautonomy. Parties are empowered to take responsibility for their own actions and negotiations. They are seen as mature individuals who are capable of making their own decisions as to what does or does not constitute an appropriate and just result (Lim, 1997). Self-&termination. Unlike a judge or an arbitrator, the mediator lacks authoritative decision-making power; “the ultimate authority in mediation belongs to the participants themselves” (Folberg and Taylor, 1984, p. 10). The mediator should not coerce or influence the parties into accepting his or her preferred outcome. Neutrafity The mediator should have no prior knowledge about or interest in the outcome of disputes and should not be influenced by

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Figure 1. Normative LEADR’s Model of Mediation Past

Underitanding and ex oration

1. Mediator’s opening statement The mediator sets the parties at ease, defines his or her role, ground rules, and the mediation process. The parties are told: “You both need to decide what is the best outcome for you. I am not here to tell you what your agreement should be.”

2. Parties’ statement The parties tell the mediator and the other party their perspective on the dispute. The mediator summarizes and reframes “potentially inflammatory and judgmental language into something both parties can accept without losing the meaning of what is conveyed.”

3. Issue identificatiodagenda making The mediator extracts and reframes (in neutral and mutual terms) the issues and concerns onto a white board, moving the parties toward “collaborativeproblem solving” and avoiding “being driven by [the mediator’s] own private agenda” or by “a professional focus.” 4. Issue exploration and clarification The mediator encourages direct communication, facilitates the exploration and clarification of each issue in detail, and provides opportunities for parties to ventilate their feelings and emotions and thus achieve mutual understanding of one another‘s perspective. “The mediator empowers the parties to take responsibility for the antecedents of their dispute and the part they played in it rather than relying on the mediator’s assessment of it.. . .”

Problem solving and resolution

5. Private sessionstcaucus The mediator speaks to each party privately and confidentially to explore issues that have not been revealed, uncover the bottom line, “reality test” options, explore settlement options, and rehearse for the final negotiations. The mediator may not transmit any information to the other party without explicit permission.

6. Final joint session/final negotiations The parties table their options. The mediator facilitates the evaluation of options and negotiatbns and focuses the parties on the progress made and on the future instead of on the past.

Future

7. Closing The mediator “reality tests” to ensure that both parties are satisfied with the agreement before points of agreement are drafted. Three possible outcomes are agreement, adjournment, and termination.

Source: Adapted from

Dewdney (1995).

LEADR’s training manual. Quotations are from Charlton and

Enacting and Reproducing Social and Individual Identity

personal preference for options or outcomes (Laskewin, Vliert, and Dreu, 1994).

Impartiality. The mediator should have no prior relationship with the disputants. In most cases, the mediator is appointed by the mediation center and does not have any prior dealings with the parties. In any case, if there are previous dealings with any of the parties, the mediator should disqualify herself.

Insights into Chinese-Malaysian Mediation We now use the data collected to compare the mediation process in the Chinese-Malaysian model and the LEADR model. Three aspects of the mediation process were elicited: the goals and values of the mediator, the roles of the mediator, and the enacting and restarting of social exchange. It should be highlighted that although these aspects are presented separately, they are in fact shaded into each other. Goals and Values of the Mediator

I usually advise parties Yi be weigui" (Harmony is precious). I will tell them that there is no need to argue, after all they are neighbors.. .. [I] will persuade each to give way a little so that things can be settled.

-Mr.

KKY

The Chinese-Malaysian process of resolving conflict centered on restoring harmony and preventing future conflicts between the parties involved. The primary goal is to ensure harmonious relations among all persons within the disputants' network of family, friends, and neighbors, with the ultimate aim of stabilizing the community. Hence the substance of the agreement is often less important to the mediator than are the preservation and restoration of relationships. Individual fairness and rights are therefore subordinated in favor of harmony and community interest. The mediator often convinces the involved parties to accept reasonable solutions rather than to optimize joint gains. Parties may be asked to compromise, which may include making necessary adjustments in their behavior for the good of the community.

I hope that parties will accept my mediation service and comply with the settlement of the dispute, [that] there will not be any [future] quar-

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rels or arguments between them. “Hemugongchu” (to live in harmony) is my main goal.-Mr. CSP

To resolve the matter smoothly so that everyone will live in harmony. It is best that they can talk calmly over the disputes and settle it without prolonging it.-Mr. WTF

I just hope that everything goes well and everybody is happy. That is important, in any situation-to settle things amicably and create a normal and happy life.-Mr. NSH There is an emphasis on interdependence, preservation of existing relationships, maintenance of each other’s face, and reaffirmation of customary proper conduct between disputants in their defined role relationships (LeResche, 1992). For example, proper conduct is expected between parents and child, older and younger people, husband and wife, employer and subordinates, neighbors, and in one’s general conduct as a human being. In addition, the mediator also occupies the legitimate role of a guardian and advocate of community interests or values. The dispute is usually placed within the larger context of the family and community, and the mediator makes a strong case for the well-being of members of the family or community. As one mediator puts it: What is right in exercising your rights if you harm the innocent members of the other fmily?-Dato SJS In contrast, the values underlying LEADR mediation processes focus on preserving disputants’ autonomy and independence in forging an agreement. Parties are free to define their roles and the substantive interests and issues of the dispute. The mediator‘s role, as far as preserving the relationship is concerned, goes as far as necessary to allow parties to address their concerns constructively and to ensure compliance with the final agreement. Whether they wish to preserve the relationship as a substantive goal is left to the disputants and not considered to be within the purview of the mediator. If the disputants elect to exclude the interests of third parties, they are free to do so. In facilitative mediation models, the mediator avoids being prescriptive and judgmental. Instead, the mediator acts as a facilitator and does not determine who is at fault. O n the contrary, Chinese-Malaysian mediators

Enacting and Reproducing Social and Individual Identity

analyze the information that they have gathered with a view to distinguish right conduct from wrong. The predominant assumption is that both parties are at fault in the conduct of their social interactions; otherwise there would not be a dispute. The belief is that dispute arises out of improper conduct in social relationships. As one mediator describes it: A good mediator must be able to differentiate between right and wrong.

The basis of such is through Chinese customs and tradition of what should or should not take place.-Mr. LAS There are occasions when a disputant seeks mediation for the sole purpose of restoring the relationship. Two mediators cited situations in which one party knows that he is in the wrong but will not admit that to the other party because to do so would result in a loss of face. He therefore approaches the mediator for help. The mediator‘s role in such a situation is to create avenues for the party to back down gracefully and restore the relationship.

It is a matter of how to back down. So my strategy is to give him the ladder, for him to step down without a loss of face.-Mr. KCW The issue is how to step down. For instance, an individual made a mistake but he does not know how to remedy the situation. There is no ladder for him to step down. So I always offer myself as the ladder for disputants to step down. I have always been used as a stepping ladder. -Mr. MC Face is a very important aspect of Chinese life and culture. Compromises and concessions h e r a dispute has arisen are considered a sign of weakness and loss of face. Including a mediator allows the parties to concede in the pretense of giving the mediator face. By deferring to the mediator’s advice and calls for concessions, neither party loses face. Moreover, the mediator safeguards each party’s face by assuring both of them that they have their own “logic” (“Gongshuo gongyou li, po shuo po you h”).

Respect. Seventy-five percent of the respondents cited respect as the most important quality for a mediator. If a mediator is respected, disputants are “willing to listen” to his advice. A well-respected mediator is also in “a better position to persuade parties” as rejection ofadvice is often seen as a “sign

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of disrespect.” Thus, rejecting advice from someone you respect is not only inconsistent but also considered impolite if not morally wrong, and certainly against the standard of zuo ren (a widely accepted and recognized set of standards of behavior or beliefs concerning what is and is not acceptable in the community; literally, the term zuo ren means “being human”). Thus, rejecting advice from persons that you respect creates not only cognitive dissonance but also feelings of guilt. The Chinese notion of respect differs from the Western concept; holding a person in esteem is a necessary but insufficient condition for respect. Respect in a traditional Chinese mind contains a strong requirement for deference to the “respected person.’’ Respecting a person is listening to and accepting what the person says. When both parties want me to mediate, they must first respect me. With regards to certain things, I will feel that it must be done in a certain way. I will come out with the reasons for doing so. Of course if they cannot accept it, then I am afraid I cannot be of any help. I may give up helping them. After all, they do not respect me.-Mr. WTF When I persuade parties, I will tell them, “Since you asked me to mediate for you today, you must respect me. You must be able to accept what I suggest.. . .”-Mr. TES But how does one gain respect in a Chinese community? Respect is gained through life experience, years of contribution to the community, and the social position of the person. One aspect of social position in Chinese community is age. Age is a proxy of life experience, and life experience is considered the building block of wisdom. A commonly used Chinese phrase to reprimand younger people for being disrespectful of their elders is “the salt that he or she has eaten is more than the rice that you have eaten.” Experience in dealing with conflict also earns respect. Disputants often seek a mediator who can help them resolve their conflicts. I’m the village head and also considered as an elder. Hence people feel that I am in a better position to persuade parties. When I talk, they will listen to me. They usually accept what I say-Mr. Lxz Usually parties approached me to settle their disputes. They asked me to mediate due to my status as the village head. There is a sense of respect for me.-Mr. LKS

Enacting and Reproducing Social and Individual Identity

Respect is also derived from social status in the community as well as connections. In each village, the cbun zbang (village leader) is an influential member of the community. The leader achieves this status by contributing voluntary service to the community, as well as by representing community members' political interest through the MCA. In the Chinese-Malaysian community, clan membership has strong ties, A person may be affiliated to a dialect clan or a trade association clan, which ultimately connects to the MCA, which functions both as a political party as well as a national Chinese clan. Thus, many aspects of community, business, and political life are intertwined and take the form of clanship ties at various levels. The community leaders (cbun zbangs) are also political leaders and members of MCA. Their political connectivity also extends to the old sultanates. In Malaysia, besides the constituted parliamentary system, there is also the monarchy in each state (the Malay sultanates). Although over the years the sultanate has given up much of its political powers, it is still influential and respected in the Malay community. Often, the cbun Amgs are politically connected to the sultanate as evidenced by the conferred titles that prefix their surnames (for instance, Dato Choo). These titles are the means with which the sultan recognizes the contributions of the individual to their causes and agenda. Besides prestige, there are also practical benefits to being conferred Dato-ship. An individual government administrator, on his personal accord, would often give preferential services to individuals who have the title of Dato as a gesture of respect. Thus, Dato have the clout to get things done that the ordinary citizen may find difficult.

MoralAuthon'ty. Part of the deference that chun zbangs enjoy comes from their imputed moral authority. A community leader in Malaysia is expected to be a role model for the community and to hold a high moral standard of knowing how to zuo ren (be human). This code of conduct is widely accepted by the Chinese-Malaysian community; however, the exact codes and values exist as stories, proverbs, or idioms. The mediator applies the code subjectively, using stories, proverbs, and idioms to justifjr her view of the situation. It seems that mediators use these elements as building blocks to create a socially acceptable view of the situation as well as a socially acceptable solution with the disputants. One of the key assumptions that disputants hold is that the community leader will uphold justice without prejudice. Thus, these cbun zbangs have both the moral authority as well as the positional power to influence the

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outcome of the mediation. Disputing parties are willing to sacrifice their right of self-determination and defer to the mediator, who is perceived as a legitimate keeper of social harmony, peace, community interest, and good conduct. Thus, Chinese-Malaysian mediations have evolved to become more assertive and directive than prescribed by LEADRs model of mediation in trying to achieve harmony and settlement. Mediators feel that the disputant‘s trust is important for mediation to be successful. If the disputants trust the mediator, they are more likely to listen to him and more willing to accept his proposals on how the conflict can be resolved. Trust goes beyond legitimacy; trust is believing that the mediator takes personal responsibility and interest in resolving the conflict. Part of this onus and responsibility arises from some forms of a claim to friendship, or clanship. Thus, Chinese-Malaysian mediators have existing relationships with the parties; the parties know them, and they share the same community values. The disputants trust them to settle their problems because the mediators are friends, kin, or fellow clansmen. Being the village head, I know everyone. Since disputants are villagers, I know them well.-Mr. CSP

They know me. Since I am more likely to understand them, I am the ideal person.-Mr. LKS Both parties must feel that they trust the mediator, for which the latter must possess a sense of respect.-Ms. CNY Existing ties are seen as an asset. This is in sharp contrast with the LEADR model of mediation, where there is a presumption of bias if the party knows or has dealings with the mediator. The assumption is that a mediator with prior relationship cannot mediate in a balanced and fair manner.

Roles of the Mediator The mediators see themselves enacting a variety of roles. These roles are culturally based.

Reproducing ‘‘Wuhrnin Autboriv. LEADRs mediators are trained to ”

guide parties through the various stages of mediation and to keep them

Enacting and Reproducing Social and Individual Identity

attuned to the ground rules and focused on reaching an agreement (LeResche, 1992). Their main responsibility is to manage and facilitate a collaborative process. In contrast, Chinese mediators engage in two major roles. Their responsibilities extend beyond the management of process. First, they are regarded as problem solvers. They look into the issues, evaluate the case based upon their experience, and offer substantive recommendations on how the conflict should be resolved. The disputants expect them to offer solutions to the conflict. There are disputants who came to me feeling very angry. So I will assure them that it is easy to resolve the problem, that I will take up the burden of helping them settle the dispute.-Dato SJS

It is important for the mediator to have strong analytical skills-to hear from parties and analyze [the information] in order to come up with options for them.-Mr. WYH A mediator should suggest solutions. Of course, a mediator should suggest the best solution to parties.-Mr. W T F

Reproducing Zuo Rpn. Second, Chinese-Malaysian mediators perform the role of social educator. They are guardians of moral conduct and social behavior. Wall ( 1 993) found that “education” was the most cited activity of mediators in China, and the education occurred more frequently there than mediations in Korean, Japanese, or Malay communities (Wall and Callister, 1999). Chinese-Malaysian mediators believe that disputes arise because of improper social interaction-disputants “624 hui zuu ren” (literally translated, the phrase means “do not know how to be a human being.”) There is an implicit belief that when proper conduct is observed, all substantive issues can be resolved. Thus, Chinese-Malaysian mediators often engage in analyzing the sequence of social interactions that led to the dispute. They identiG inappropriate speech and behaviors and prescribe a model of interaction for the parties. They also explain the rationale for their prescription, based on zuu ren.

I feel that I am like an educator-teaching disputants how to resolve the problem as well as how a person should behave and act. When I am appointed as the village head by M U , people respect me. And so in all ways, I will try my best to educate them.-Mu. CMK

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I am here to mediate and to see that they reconcile.. . . I am like their bridge, connecting them together. Usually, I will analyze things based on the logic of zuu rm.-Mr. KSL Wall (1993) found that “critiques” ranked as the third most frequent activity of the mediators from China. Chinese mediators use critiques more frequently than do mediators in Korea, Japan, and Malay communities (Wall and Callister, 1999). This role originates from their collectivist culture. The majority of the respondents advocate that their responsibility is to the society as a whole. Consequently, the mediator teaches the parties what should be the correct way to interact or behave, thereby reinforcing the standards of zuu ren, in maintaining social harmony and solidarity.

I feel responsible to the whole village. Preserving the harmony among the villagers is very important.-Mr. LKS When I mediate, it is for the good of the whole village. As a village head, I hope that everyone can live in harmony.-Mr. WTF In contrast, LEADR’s mediators have a limited role. As facilitators, their role and responsibilities do not extend beyond the boundaries set by the two parties in dispute. Chinese-Malaysian mediators see the dispute as part of a larger context, one that goes beyond the individual interest of the two disputants into the realm of the community. The mediator is the guardian of community interest and the good conduct of social relations. Here is an illustration of Trompenaars’ cultural dimension of collectivism (1 993). In a collectivist culture, people regard themselves primarily as part of a group. It is more important to consider the collective first since many individuals share that sphere. Having i n outer-directed orientation implies that substantial weight is given to signals and demands from outside the self in determining one’s actions and responses. Finally, the culture tends to integrate and configure details into diffused patterns or relationships that encompass the wider contexts. Bearing these dimensions in mind, we can see that Chinese-Malaysian mediators address issues outside the individual and diffuse them into issues of the collective community.

Enacting and Reproducing Social and Individual Identity

Enacting and Restarting Social Exchange The normative model of L M R s mediation facilitates communication and guides parties through stages of negotiated problem solving. In contrast, Chinese-Malaysian mediators intervene primarily to restart social exchange. They are more concerned with restoring the relationship than with the substance of the agreement. They advocate treasuring feelings, face saving, and forgiving. They argue for giving face and returning favors. They safeguard the parties’ face, and they use it as a tool to restart social exchange. In the strategy of treasuring feelings, mediators emphasize the desirability and mutual benefit of working toward improving the relationship. Parties are asked to “treasure” the feelings of the other party and also to treasure the good feelings of the relationship. All the mediators said that they used this strategy frequently. In contrast, LEADRs mediators do not explicitly address the need to consider the feelings of the other party and the importance of preserving the relationship, for fear of advocating their own values and undermining the independence and autonomy of the disputants. Closely related to treasuring feelings is the notion of seeking forgiveness. About half of the Chinese-Malaysian mediators employ this strategy in their mediations. Disputants are encouraged to “let bygones be bygones” and rebuild their relationship. Each disputant who feels that she is the “victim” of the dispute may be asked to forgive the other parry, thereby showing her magnanimity and enhancing her personal status.

If one party is wrong, the other one should forgive that party. ...We as humans should forgive. I will advise them “Ha0xin you ha0 bao” (“Thosekind-hearted souls will receive good in return”).-Dato SJS is also common to persuade parties to trivialize the issue. Mediators cite ancient proverbs that embed socially accepted wisdom and norms, for instance, “Tuiyjbu, baiguo tian kong”(“Take a step back, and still pass [or get to] heaven”). Mediators ask parties to take a step back, tolerate transgressions for a moment, and things will be all right. A quarter of the mediators also cite the idiom “Dasbi buu xiao, xiao shi buu wu” (“Turn a large issue into a small one, then turn the small one into none”). The Chinese notion of face giving is consistent with the studies of Bagshaw (1995),Wall (1993),and Wolski (1997). However, deeper It

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analysis of face leads to an extension of existing literature. Looking beyond the surface of face is the notion offavox A person who has been given face feels that he has received a favor. In turn, he has to reciprocate the favor to preserve the other party’s face. Such reciprocal feeling permeates the Chinese-Malaysian’s mind. Ingratitude is never condoned within the community-one must always reciprocate a favor. Chinese-Malaysian mediation practices aim to restart social exchange, but they are also social exchanges in themselves. When the mediator agrees to mediate, she is doing the parties a favor. She first gets one of the parties to give face to her by obliging her suggestions for a settlement, which often includes an element of face giving (for instance, a limited apology or regret). At this juncture, the disputant can hardly resist because of the obligation to return the favor given by the mediator when she agreed to mediate. Usually there must be one party who is willing to give way. I will see which party is more likely to do so. Then, I will try to persuade that party.-Mr. KKY Next, the mediator convinces the other disputant that face has been given so that that party feels obliged to return the favor by agreeing to the settlement as well. This sets up a virtuous cycle of giving face and reciprocating favor. Sixty percent of the mediators would devise a solution and propose it to each of the parties, along with reasons the solution should be seriously considered. This is what Wall and his colleagues classified as “argue for concession,” which ranked as the second most common activity in Chinese mediation (Wall, 1993).

Discussion This study shows that the language and norms originating from their cultural past influence the practices and discourse of Chinese-Malaysian mediators. These cultural beliefs about appropriate behaviors in the conduct of social relations are reproduced in their discourse and education effort. Each disputant’s social interactions are evaluated against a normative standard of zuo Ten and he is told how he should have conducted his social interactions. Mediators consciously use idiomatic language in the form of sayings and proverbs to gain legitimacy and reproduce cultural beliefs, norms, values, and customs. These distinctive beliefs, norms, val-

Enacting and Reproducing Social and Individual Identity

ues, and customs are the basis for differentiating themselves from other ethnic groups and form the core of what it means to be a ChineseMalaysian. This ideology gives members a social identity as well as selfidentity, which are relatively stable across time. Another powerhl process of cultural reproduction is the socialization of mediators. Thus, a natural extension of this study is to understand the socialization and culturalization processes that Chinese-Malaysian mediators undergo. Our preliminary information suggests that ChineseMalaysian mediators learn their practice through stories told by senior mediators, participant observation, and co-mediation. As mediators are often elders or members with social status and prestige, they are often older committee members within their clans, business associations, or the MCA. There seems to be an expectation that the role of a committee member includes that of being a mediator. Thus, senior members in a committee socialize new and younger committee members through stories of their experiences. Once the member is sufficiently socialized and has gained some prominence, she may be invited to participate in mediation and provide legitimacy and support to senior members who are mediating. Exposing younger committee members not only provides vicarious training but also increases their social prestige, which is an important element of legitimacy for a mediator. It is only when a member gains sufficient prominence and influence that she will be approached or asked to mediate. This “career” path of an ethnic community mediator could be the focus of hture studies, to help shed light on how mediators are socialized and the rites of passage that mediators experience during their “career.” This study has highlighted the saliency of values, culture, and ethnicity in Chinese-Malaysian mediations. However, such elements do not seem to be as salient for Chinese-Singaporeans. This is a significant contrast, when one considers the fact that both Chinese communities shared a common history until as recently as 1968. Researchers may wish to identify the factors that influence the saliency of culture and ethnicity at both the community and individual levels. Identifying predictors of cultural saliency allows mediators in a multicultural society an additional tool for assessment and planning. One of the limitations of our study is its limited generalizability, owing to its qualitative nature and small sample. However, our study shows that to develop culturally appropriate models of mediation we should both encompass customary processes and include the values as transmitted through the cultural symbols used. In the case of the Chinese-Malaysians,

CHIA. CHONG. LEE-PARTRIDGE. HWEE. WEI-FEI

the symbols are contained substantially in ancient sayings and proverbs cast in idiomatic syntax. Other symbols that give the mediators legitimacy and thus efficacy are their social position, political network, and life experience. In culturally salient communities, the use of these cultural symbols facilitates conflict resolution and helps perpetuate the existing structures and beliefs within the community. The traditional model of mediation reinforces the status quo by reproducing the past (which may or may not be appropriate for todayâ&#x20AC;&#x2122;s environment). Thus, designers and implementers of conflict resolution systems should consider the impact of powerful cultural elements such as rituals, stories, language, and symbolic artifacts on the disputants, the mediator, and the community. Unless policies are made in cognizance of such knowledge, unintended effects that influence social and individual values and identity will result. The power of cultural symbols has practical implication for the individual mediator. Mediators in culturally sensitive communities can enhance their effectiveness by employing key cultural symbols to frame and reframe the situation. Because cultural symbols have been overlearned and reinforced, they are powerful communicators that go beyond the conscious mind, speaking to core belief systems, which are often unquestioned and axiomatic. For instance, in Malay communities where Islam plays a key role in everyday life, mediations on Sabbath Fridays may be helpful. The mediator can highlight the significance of Sabbath and ask if the disputants would like to start the session with a short prayer that asks for divine blessing. Using such symbols can help frame mediation positively and optimistically both at the conscious and unconscious levels. Disputants are more likely to act in good faith, have greater trust, and be less defensive with the grace of God on a Sabbath day. Mediators are often faced with a disputant having a mind-set that is unhelpful for conflict resolution and often have to reframe the mind-set so that productive problem solving can take place. For instance, the mediator might have to move disputants away from seeking retribution and into problem solving; away from focusing on the past, and instead focusing on the future. Cultural symbols that legitimize forgiveness and letting go of the past can help the mediator achieve reframing quickly and effectively. If researchers can help categorize these common situations that require reframing as well as the cultural symbols that can help reframe a disputantâ&#x20AC;&#x2DC;s mind-set, this would place powerll tools at the mediatorâ&#x20AC;&#x2122;s disposal.

Enacting and Reproducing Social and Individual Identity

Limitationsof the Study This study suffers from the usual limitations of qualitative research, which requires a large amount of generosity on the part of the informants; such generosity is obtained through networks, which are seldom if ever random. Consequently, the findings limit generalizability. Furthermore, the data obtained through self-reports are susceptible to inaccuracy resulting from memory effects and self-representation bias. However, the reality is that mediation is a private matter, as noted by Esser and Marriott (1995); it is difficult for researchers to obtain permission to observe a mediation session. Finally, as in all face-to-face interviews, there is always a possibility of response bias. Interviewers may introduce bias through rephrasing a question or by tone of voice. Nonetheless, Seidman (199 1) pointed out that such influences are inevitable and are an inherent feature of interviewing. In conclusion, our study has highlighted some pertinent differences between the concepts of mediation among Chinese-Malaysian mediators R model. In this light, it is perhaps and those purported by the W important for both practitioners and researchers involved in mediation to reexamine their mediation practices and consider how their own cultural backgrounds may influence their mediation. References Babbie, E. R The Practice of Social Research. Belmont, Calif.: Wadswonh, 1998. Bagshaw, D. “Family Mediation Chinese Style.” Australian Dispute Resolution JOUW~

1995, 6(1), 12-24.

Barsky, A., Este, D., and Collins, D. “Cultural Competence in Family Mediation.” Mediation Quartcrb 1996, 13 (3), 167-178. Berger, I?, and Luckmann, T. The Social Construction of Rcalitp New York: Penguin, 1966. Brown, A. J., and Marriott, A. L. ADR hinciplez and fiactices. London: Sweet & Maxwell, 1993. Callister, R R., and Wall, J. A. “JapaneseCommunity and Organizational Mediation.”Journal of ConfIict Resolution, 1997, 41, 31 1-328. Charlton, R, and Dewdney, M . The Mediator? Handbook: SkiffsandStnategiessfor Practitionm. Sydney, Australia: Lawbook, 1995. Eisenhardt, K. M.“BuildingTheories from Case Study Research.” Acadnny of Management Review, 1989,14 (4), 532-550. h e r , J. K.,and Marriott, R. G. “MediationTactics: A Comparison of Field and Laboratory Research.” Journal of Applied Sorial P!cholog)r 1995, 25 (171, 1530-1 546.

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Folberg. J., and Taylor, A. Mediation: A Comprehensive Guide to Resolving Conflicts Without Litigation. San Francisco: Jossey-Bass, 1984. Herman, M. S. “In Support of Variety: On the Need for Refined Matching of Dispute Resolution Processes and Case.” InternationalJournal of Group Tensions, 1987, 1Z61-83. Hogg, M. A., and Turner, J. C. “Social Identity and Conformity: ATheory of Referent Informational Influence.” In W. Doise and s. Moscovici (eds.), Current Issues in European Social Psychology Val. 2. Cambridge: Cambridge University Press, 1987. Hunter, C. Dispute Resolution in the PRC*A Practical Guide to Litigation andArbitration in China. Hong Kong: Asia Law and Practice, 1995. Jandt, F. E., and Pedersen, I? B. “Culturally Contextual Models for Creative Conflict Management.” In F. E. Jandt and l? B. Pedersen (eds.), Conrtructive Conflict Management: Asia-Paci$c Cases. Thousand Oaks, Calif.: Sage, 1996. Kochman, T. Black and White Styks in Conflict. Chicago: Chicago University Press, 1981. Laskewin, l?, Vliert, E., and Dreu, C. “Organizational Mediators Siding with or Against the Powerful Party.” Journal ofApplied Social PsycbobQ, 1994,24 (2), 176-188. LeResche, D. “Procedural Justice of, by, and for American Ethnic Groups.” Unpublished doctoral dissertation, George Mason University, 1990. LeResche, D. “Comparison of the American Mediation Process with a KoreanAmerican Harmony Restoration Process.” Mediation Quarter& 1992, 9, 323-339. Leviton, S. C., and Greenstone, J. L. Elements ofMediation. Pacific Grove, Calif.: Brooks/Cole, 1997. Lim, L. Y. The Theoty and Practice of Mediation. Singapore: FT Law and Tax Asia Pacific, 1997. Lim, L. Y., and Liew, T. L. Court Mediation in Singapore. FT Law and Tax Asia Pacific, 1997. Lund, B., Morris, C., and LeBaron-Duryea, M. “Conflict and Culture: Report of the Multiculturalism and Dispute Resolution Project.” Victoria, B.C.: Institute of Dispute Resolution, University of Victoria, 1994. Mason, J. Qualitative Researching. London: Sage, 1996. McCall, J. G., and Simmons,J. L. Idpntitiesand Interactions. New York: Free Press, 1978. Mead, G. H. Mind, SeFand Socieq Chicago: University o f Chicago Press, 1934. Minichiello, V., Aroni, R, Timewell, E., and Alexander, L. In-Depth Interviewing: Researching Peoph. South Melbourne, Australia: Longman Cheshire, 1990. Rabbie, M. Conflict Resolution and Ethnicity. Westport, Conn.: Praeger, 1994. Seidman, I. Interviewing as Qualitative Research. New York: Teachers College Press, 1991. Trompenaars, F. Riding the Waves of Culture: Understanding Cultural Diversity in Business. London: Economist Books, 1993.

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Turner, J. C., and Oakes, l? “The Significance of the Social Identity Concept for Social Psychology with Reference to Individualism, Interactionism and Social Influence.” British Journal of Social Pvchology, 1986,25,237-252. Wall, J. A. “Community Mediation in China and Korea: Some Similarities and Differences.” Negotiation Journal, 1993,9 (2), 141-153. Wall, J. A., and Blum, M. “Community Mediation in the People’s Republic of China.” Journal ofConj¶ict Resolution, 1991, 35 ( l ) , 3-20. Wall, J. A., and Callister, R. R. “Malaysian Community Mediation.” Journal of Conj¶ict Resolution, 1999, 43, 343-365. Wolski, B. “Culture, Society and Mediation in China and the West.” Commercial Dirpute ResolutionJournal 1997,3 (2), 97-123.

Appendix: Interview Protocol Background

1. Sir or Madam, could you tell us a little about yourself? And about how you became a mediator? 2. Could you tell us the reasons you continue to be a mediator?

Types of Disputes

3. What kinds of dispute do you deal with? Could you describe some of the issues involved? 4. Given the various categories you have identified, could you estimate the percentages of their occurrence?

Process

5. It would help us understand the mediation process better if you could describe a recent case for us. Tell us some of the issues, what you did, and why you did it. Who were the disputants? What were their issues? What was their relationship to the mediator? Who initiated the process? What was the setting, atmosphere?

6. Information checklist: How was information revealed? When was it revealed? How was it drawn from the disputants? What was the mediator’s role in generating exchange of information? What effect did information have on progress and resolution?

7. Position checklist: How did the parties indicate their positions? When did they do this? What was the role of the mediator in drawing out positions? What effect did the knowledge of position have on progress and resolution?

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8. Interest checklist:

How did the parties indicate their interest? When did they do this? How was their interest drawn out? What was the role of the mediator in drawing out their interest? What effect did the mediatorâ&#x20AC;&#x2122;s ability to draw out interests have? 9. Criteria checklist: How did criteria emerge?Through explicit suggestions?As part of explaining or discussing a position, interest, or option? As a means of breaking a deadlock between two positions? When did they emerge? How were they drawn out? What was their impact on progress and resolution? 10. Options checklist: How were options proposed? When were they proposed? How were they received? Were they explored? Measured against criteria? Rejected quickly? Who proposed them? The stronger or weaker party? What was the role of the mediator in developing, exploring, and gaining acceptance of the options? To what extent did the options turn into positions? What was their impact on progress and resolution? 11. Agreement checklist: What was the final move to a point of agreement? Was there agreement in principle to work out the details? Was there agreement on the nature of the criteria? What did the parties agree to? What was the impact on progress and resolution? Aims, Objectives, 12. When you mediate, what are some of the aims or objectives you Goals hope to achieve at the end of the mediation? Roles

13. What do you think are the roles and responsibilities of a medi-

ator? Do you see the mediator as Educator? Teacher?Judge? Counselor? Upholder of morals? Keeper of social harmony? Keeper of social policies? Problem solver? Decision maker? Responsibilities

14. What are a mediatorâ&#x20AC;&#x2122;s responsibilities? To self?

Enacting and Reproducing Social and Individual Identity

To the parties?

To society? Values

15. Do you hold (or strongly believe in) any personal values in mediating? If so, what idioms or proverbs or teaching do you commonly use?

Principles

16 As an experienced mediator, what advice would you give to aspiring mediators? What are the important principles and values?What are the important dos and donâ&#x20AC;&#x2122;ts?

Good Mediators

Issues

17. Ifwe are to select mediators, what kind of person should we be looking for? What qualities must the person have to be a good mediator? 18. I have a list of qualities of a mediator. Would you look through it and pick out ten qualities that you feel are essential and rank them according to importance? Sir or Madam, I would like your opinion on some controversial issues in mediation.

Degree of Intervention

19. How much should a mediator intervene in the process?

Fairness

20. I want to talk a little bit about the idea of fairness. People interpret fairness differently. In your opinion, what is a fair outcome? What makes an outcome Fdir or unfair? 21. If you donâ&#x20AC;&#x2122;t mind, I need to probe further and ask your opinion on more controversial issues. Which is more important: fairness in the agreement or fairness in the process? 22. Should the outcome be fair to the individuals or to society or the community? 23. Which aspects of fairness should a mediator be concerned with?

Neutrality

24. Some mediators say it is difficult to be neutral and impartial.

Should he or she suggest solutions? Should he or she decide what is best for the parties? Should he or she persuade the parties to accept a solution? How much pressure should a mediator exert to reach an agreement?

There is always a party you think is right, a party you feel has been disadvantaged by the other or by society, and those feelings and thoughts influence the mediatorâ&#x20AC;&#x2122;s actions. What is your response to this statement? 25. What is your interpretation of being neutral, impartial? Power Imbalance 26. There are situations in which the parties in the dispute have very different powers. One party is clearly disadvantaged, whether bv economic Dower, Dower from deDendencv. or

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psychological power. Can you describe such a case and tell us the tactics and strategies you used in settling the dispute? 27. What lessons did that case have for you? Challenges

28. Describe the most challenging case you have encountered.Tell us the strategies you used to meet those challenges. 29. What lessons did that case have for you?

Strategies

30. I have a list of strategies here. Would you look through them and tell us if you use any of them? 31. Could you indicate the frequency of usage?

Ho-Beng Chia is assistant professor in the Department of Management and Organization at the National University of Singapore. He is head of education for the CASETrust Committee of the Consumers’ Association of Singapore and trains the association’s panel of mediators.

Chee-Leong Chong is currently CEO of Singapore Anti-Tuberculosis Association. Previously he was associate professor in the Department of Management and Organization at the National University of Singapore and headed the university’s Productivity and Quality Research Center. Jooeng Lee-Partridge is associate professor in the Department of Decision Sciences at the National University of Singapore, where she is currently director of the Master‘s of Science Program in Management of Technology.

Chantel Chu Shi Hwee currently organizes and manages national sport events at the Singapore Sports Council. This article is based in part on data collected for her thesis undertaken in partial fulfillment of her honors degree in business administration. Sharon Francesca Koh Wei-Fei graduated from the National University of Singapore with an honors degree in political science. She manages research and consulting projects for the Productivity and Quality Research Center.