Law Times

Law Times • December 6, 2010 FOCUS PAGE 13 Understanding diversity key to successful ADR M BY ROBERT TODD Law Times ediators have a tough enough job of bring- ing two conflicting sides together, but the chal- lenge can be even greater when parties come from diverse cul- tural backgrounds. Shashu Clacken of Koch Thornton LLP in Toronto says many mediators and alterna- tive dispute resolution prac- titioners she has spoken with find it difficult to know just what it means to be neutral in the context of matters involv- ing two vastly different par- ties. Is it neutral, for example, to treat two parties exactly the same when they have differ- ent levels of experience in the mediation process and come from different cultural back- grounds or even speak differ- ent languages? While that's a perplexing question to face, Clacken sug- gests mindfulness will help me- diators move in the right direc- tion. It's unrealistic to expect them to know everything about each culture they come across, but sensitivity training can help put them in the best place to manage conflicts involving di- versity issues, she says. "It's more about being self- aware so that they're mindful of potential biases or assumptions going into a conflict resolution scenario. Then approach each matter with an open mind and curiosity to ask the questions that might not be all that obvious when you're outside the room." Perhaps most important is the need for practitioners to under- stand the significance of a par- ticular factor in one person's cul- ture versus another's, she adds. A concession may mean nothing to those on one side of the table but be a major problem for the other based on cultural norms. ADR practitioners can be- come more mindful of these is- sues through general awareness and sensitivity training, but it can also be very helpful to sur- round themselves with individ- uals from diverse backgrounds. "You always have a stronger team when you have people from varying perspectives, vary- ing backgrounds that can com- bine their strengths and their familiarities and say, 'Well, this reminds me of X scenario and this is how I approached it,'" Clacken explains. But that's not to say it should be mandatory for practitioners to fill their office with individ- uals of differing cultural back- grounds. The main thing, she says, is for all members of the team to work towards increas- ing their awareness and under- standing of other cultures. Meanwhile, Clacken be- lieves the profession as a whole can help foster that through the creation of mandatory train- ing programs for practitioners. "From an educational perspec- tive, it's very important that the model accounts for the change Untitled-7 1 in population," she says. "The curriculum itself has to reflect that, and I think even for any further train- ing that ADR professionals have, it should be central in that training." Leanne Shafir, director of Osgoode Hall Law School's mediation intensive clinical program, has been part of an effort to do just that. It allows law students to spend a full year bringing together both mediation theory and practice with a separate emphasis on working with the nearby and culturally diverse community in To- ronto's Jane-Finch area. The second- and third- year students who partici- pate in the program spend much of their time learn- ing a mixture of the theory and practice of mediation and dispute resolution. It includes time spent in four schools surrounding the Osgoode campus where they Shashu Clacken believes the curriculum for mediators should include diversity issues. teach conflict resolution skills to students. They also help the schools create restorative practices that allow staff and students to address conflicts before they escalate, as well as find- ing alternative solutions to suspensions. In addition, the Osgoode students have been working with various community groups, including Toronto Community Housing Corp. That work focuses largely on conflict education and me- diation. According to Shafir, when Osgoode students went into the community a couple of years ago to design their program, they asked many questions of a culturally spe- cific nature. Many wanted to know how the community would welcome them. "They did a lot of work around remaining open and remaining curious and un- derstanding different ways of being," she says. "So [it involved] trying to get them to shift from looking at what was a particular ethnicity and looking more at the many dif- ferent cultures that they each came with and what their world views were and just try- ing to get them to be open and use their communication skills to understand everyone in the community." Many of the Osgoode stu- dents have had to take a step back from their planned ap- proaches to the mediations they've conducted as a result, says Shafir, who adds that it has become clear through the program's efforts so far that it's crucial for those engaged in mediations involving individu- als from diverse backgrounds to take that kind of open ap- proach to their work. "If we had walked in and said, 'This is what we're doing,' there would have been much less buy- in than when we went to them and tried to figure out and listen to their stories and then create something to match what they needed," she says. LT www.lawtimesnews.com 12/1/10 11:36:35 AM

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• Wireless Evidence
• Aggressive Bureaucrats
• Focus On ADR / Mediation