In their work Counseling the Culturally Different, Sue and Sue identify five characteristics of the culturally skilled counselor, all of which are necessary cultural skills for restorative justice practitioners (adapted from Sue and Sue, 1990, pp. 167168):
Despite awareness of the consequences of cross-cultural misunderstandings, such as subtle snubs and miscommunications or explicit prejudicial actions, it is difficult to remove all such misunderstandings and consequences. These attempts to identify the pitfalls and dangers of cross-cultural differences that impinge upon restorative justice efforts may serve at best only to reduce the probability of future conflict or disrepair. In human interaction, even where awareness of potential problems is increased and behavior modified, matters may still go awry. For example, in situations in which the antagonists are embittered by age-old conflicts passed on from generation to generation, short-term efforts at under-standing and amelioration will likely succumb to such insurmountable odds. Such extreme cases, however, should not deter the need to learn, to inform, to model, and to seek supportive roles in helping others restore themselves to more harmonious relationships.
It is crucial for those who work in the justice field to take every step possible to reduce the likelihood of bias and discrimination. The following is a list of suggested steps, not meant to be exhaustive. Each reader should add freely to the list.
Mediators need to reflect upon and study their own behaviors and communication styles. They should ask themselves the following questions: Am I comfortable with silence? Do I interrupt frequently? Can I stand closer to someone or farther away than I usually do when speaking? Can I do this comfortably? Do I overinterpret straying eye contact? Can I talk to someone without staring him or her directly in the eye if it appears to be offensive? Do I carry embedded, learned prejudices toward persons of different skin color than my own or toward persons of the same skin color but who are less educated or better educated than myself? Do I expect persons who live in certain parts of the city to be law violators?
Keeping a journal of mediation sessions to record speech patterns of all participants might improve mediation results. The mediator should record incidents that make the participants and/or mediator uncomfortable and comfortable, use of and response to gestures and intensity of conversation, and an overall assessment of the extent to which clear communication was achieved. Through use of such journals, mediators can note if their communication patterns vary over time depending on whether they are speaking with someone of their own culture or of a different culture.
Mediators might consider taking pencil and paper inventories designed to identify biases of which they may be unaware. Bias, or having likes and dislikes, is part of human nature and will likely always be so. Some people like rock and roll music, some like blues, some like rap, some like classical, some like country, and so on. Having biases is not the problem per se (Duryea, 1994). The problem develops when bias, intentionally or unintentionally, leads to discriminatory practices. Mediators must discover their own biases so they do not wind up hurting others or themselves.
Do not make quick assumptions about others. It is difficult, if not impossible, to fully know another person. A tatter-clad young woman with bright pink spiked hair shows up for a mediation session to meet with an elderly conservatively dressed couple about theft of property from an unlocked car. Does the mediator think, "Oh no, why didn't I stay home today?" Or does the mediator assume that he or she can help these people, who appear very different and who have already experienced conflict due to the stolen property? The mediator must find some common ground from which to communicate so that understanding, restitution, and some degree of justice can be achieved for the victims.
If the mediator takes this case without meeting with the participants previously, he or she might be surprised by any number of possibilities. The young woman may be quite cooperative. After all, she is likely aware of how her appearance may affect others. Perhaps it is the elderly woman who is turned off by someone of her gender "dressing so radically." Or perhaps the elderly man finds the young woman attractive and flirts with her. Or perhaps the mediation progresses quite smoothly (it does happen occasionally). In any case, to make assumptions based on appearances without any previous information or contact with the participants will likely result in stereotypical assessments and outcomes, leaving many to wonder about the principles of justice guiding such experiences.
Look at the world through the eyes of another. Every participant is unique. Cultural influences may be quite evident, yet each individual will reflect cultural heritage somewhat differently. Mediators must understand each client as an individual within the context of culture (Ridley, 1995). If mediators are going to work with clients within a restorative justice framework, then they will need to take the time to meet with the clients, listen to them, and learn how they see their world. What meaning did the burglary have for the single mom: loss of mementos, invasion of privacy, erosion of her sense of community, awakening of fear, and so on? How does she view the offender: as vermin, as someone gone astray, as someone with potential? What is her concept of justice: getting a "pound of flesh" from the offender, having her possessions returned or replaced, seeing the offender make restitution to the community, helping the offender so future criminal acts are less likely?
Similar questions can be asked of the offender: What is his or her view of the victim, level of remorse, sense of justice, motivation to change, willingness to repair the community fabric harmed by his or her actions, assignment of blame or responsibility for actions?
Likewise, if other community members will be involved, such as in circle sentencing, mediators will want to know how these persons see themselves vis-à-vis the victim and the offender, their conceptions of justice and restoration, and their willingness to accept or reject possible resolutions to the conflict that has involved individuals and the community as a whole.
Mediators will also want to pay attention to communication styles. Does the victim speak slowly and haltingly, taking time to form thoughts and sentences? Does the offender speak in staccato fashion using few words? Does the elder speak in story forms, letting each listener discern his meaning? Does the offender avoid eye contact? If so, is this a sign of shame, or is it characteristic of his or her culture to defer to persons of authority by not looking at them directly? (Often mediators are perceived by many as authority figures.) Will the participants be comfortable sitting around a table or more willing to communicate if only open space separates them? Does the fact that the victim speaks loudly, seems to shout at times, mean that she's angry or hard of hearing or is this a communication style representative of her culture (or a combination of these factors)? Will such loudness intimidate other participants?
In human interactions in which the stakes are as high as they are when matters of justice are being decided, mediators must know the key participants so the process leading toward a just resolution is not derailed by what may initially appear to be incompatible points of view and communication styles. To gain such knowledge requires spending ample time with each participant, asking appropriate questions, listening thoroughly, and adapting one's communication style to that which is encountered. For example, if silence is a significant part of speaking for the victim, mediators need to slow down to accommodate that silence.
How mediators can help persons repair relationships or restore a sense of justice is based on their understanding of and sensitivity to the participants' points of view and their culturally learned ways of communicating, verbal and nonverbal. To gain awareness and sensitivity, time and energy are required. As with so many other processes, the desired result-in this instance a sense of restoration- begins with preparation. A restored sense of justice is enhanced by interacting well with both the offender and the victim. After all, one of the tenets of restorative justice is the humanizing of the justice system. In these programs, mediators represent the justice system to a large extent. Therefore, their actions not only shape and influence specific outcomes but can promote participants' sense of the system being responsive, considerate, fair, and just.
Listen to key informants. It is often helpful for mediators to nurture relationships with individuals in a community or culture unfamiliar to them to examine how persons work out conflicts and communicate with one another in that particular community or culture. This has been a common practice of cultural anthropologists and sociologists involved in qualitative field studies. Key informants can provide information that may prevent mediators from making foolish errors and causing damaging injury. These key informants are often not members of the professional justice community. They may include the Black mother who manages an informal delinquency prevention agency out of her apartment; the Asian elder who wants to help his grandchildren make their way in the larger culture while appreciating and holding on to traditional ways; the Latino teenager who is curious about the mediator's presence and is at least willing to test the mediator's sincerity.
One advantage mediators have with these persons is knowing that each individual has stories to share. Very few persons take the time to listen to others' stories. Willingness to listen to another person's story initiates a bond, although genuine respectful listening does not always forge total trust.
Although key informants provide a potential wealth of information on cultural values and mores, they may at times be so ingrained in their culture that they are unable to step back and see, and therefore share, how values are actually shaped and imposed or how the nuances of communication styles play out in day-to-day living. Still, these persons offer considerable potential as information resources.
Much of the work involved in bringing persons together to discuss issues of conflict needs to be done before the encounter happens. Communication difficulties that might arise during mediation can be avoided if the mediator's preparation includes learning about the cultural differences of the participants.
A fruitful mediation requires anticipating possible problems. For example, the mediator may need to help participants understand each other's viewpoints and different communication styles prior to the mediation session. Encouraging cultural sensitivity may have little impact, but it may make a difference. At least the mediator is providing some information to help prepare participants for the encounter, which may include what they would normally regard as insulting or disrespectful behaviors. Also, participants might be inspired to examine their own biases and mannerisms and thereby curb some behaviors during the mediation that might be interpreted as offensive by others.
This last statement may be overly optimisticto expect persons to increase their awareness of how others speak and behave and to change their own behaviors accordingly, particularly in situations that might become tense and conflictive. However, any increased awareness of or sensitivity to other cultural values or communication styles gained by working with the participants prior to mediation makes the time spent worthwhile; any positive change on the part of participants' behavior is an added bonus.
To illustrate some possibilities of preparing the participants to be aware of how others may think and speak, return to the brief opening scenario involving a Black male store owner, an American-Indian female shoplifter, and a White male mediator. In that example, the mediator had not prepared himself or the others. If the mediator had prepared the participants, the scenario may have unfolded in the manner revealed below.
The mediator meets with the Black store owner and learns of the store owner's feeling of invasion and loss. He knows that the store owner wants to work with the teen so that there is no more shoplifting but does not want to see her dealt with harshly. The store owner volunteers that he grew up on the streets and knows how difficult it is. His casual conversation is punctuated by gestures. His voice booms, particularly as he speaks of how the system generally rips off youth and people of color. The man wants his economic loss recovered and the girl to be helped. Essentially, he is quite sympathetic to meeting with the teenager for his benefit as well as hers or he wouldn't take the time out of his busy schedule to do so.
When the mediator meets with the Ute teenager, he discovers a very different way of communicating. She is quiet, which makes the mediator uncomfortable. She answers only direct questions. She pauses between her sentences. Sometimes the mediator thinks she is done speaking when she adds still another thought. Rarely does she make eye contact with him. When he leaves the young woman, the mediator feels perplexed and not yet ready for these two participants to meet.
Through a mutual friend, the mediator is introduced to an elder of the teen's band. The mediator asks questions and listens, seldom to direct answers, but he gets the information he needs. The mediator comes to understand that the girl was not being surly or uncooperative. She was showing him signs of respect by not looking him in the eye. She did not ask questions because such an insult would have suggested that he had not been thorough in his work with her. The teen's slow speech pattern was quite consistent with her upbringing and culture. The silences demonstrated how important it was to her to answer his questions as well as she could.
With a better understanding of both participants, the mediator is ready to proceed. He returns to each participant individually. With the girl, he shares how the Black store owner can be perceived as intimidating and impatient. The man will speak rapidly to the teen and seek to make direct eye contact, and he will probably raise his voice, but the mediator assures the teen that the store owner is not showing anger with her or being disrespectful. This is his way of conversing about things important to him. The mediator informs the girl not to expect the store owner to change his ways but encourages her to listen to the content of what the man says rather than to focus on the mannerisms and style, which might make her want to recoil.
With the Black store owner, the mediator talks of how the Ute girl will not look the store owner in the eye. He explains that interpreting her lack of eye contact as weakness, disinterest, or rebellion would be incorrect. In her culture, it is a sign of respect not to challenge authority. Certainly she views the man whose store she violated as being in a position of authority. He encourages the store owner to refrain from interrupting the girl until she has worked through her thoughts and spoken her mind. Again, he says that the slowness of speech does not indicate a learning disability or any other weakness but simply reflects the speech patterns of her culture.
As the mediator moves between the victim and the offender, he has also been working on his own awareness of how cross-cultural differences may affect his efforts to work with these two. With new information, he is also exploring his own reactions: his initial discomfort with the Black man's perceived abrasiveness, with the Ute teen's excessive meekness and apparent inability to articulate, and with his concern about his own ability to work with two people so diametrically opposed in style, if not world view.
Relieved and enlightened by his preparation, the mediator is now ready to bring the two participants together. Having done his homework, he is comfortable and better prepared for the usual unpredictable directions that such encounters take. He is hopeful that positive resolution will be agreed upon between persons who may have very little in common other than being on opposing sides of a conflict.