“The innovative mediator must seize the opportunity to chart her own path through uncharted territory at the risk of perishing among professionals who have already staked a claim.” Seamone, (2000).
Man and His Culture
Individuals define themselves by their environments, group affiliations and the families they grew up in. This shapes and influences their notions on right and wrong and how people should behave within a social structure. This is then woven into celebrations, traditions, storytelling, play, dress, language, education, rituals, gender roles, honor, status, law, and punishment. Generally individuals within a shared group hold the same basic ideas regarding right and wrong as well as notions regarding how things should be governed. Individuals outside of the group that do not share the same ideas and notions are not only viewed as different, but may also be considered enemies because their views are so different that they threaten notions of right and wrong. Sociologist William Sumner argued that an individual’s culture can limit their perceptions. “The construction and limits of kinship in any society are products of the folkways, or—in asmuch as the system is built up with notions of welfare and rights and duties… It [kinship] is, in fact, the most important societal concept which the primitive man thought out, and it would be such even if we were now compelled to reject it as erroneous (Sumner, 1906, p. 494). An individual’s identity is rooted in their culture. They believe their culture is ideal. This creates a bias against other cultures because they hold their culture above others. Sumner’s observations are neither new nor novel.
The ancient Greek historian, Herodotus, observed, "If anyone, no matter who, were given the opportunity of choosing from amongst all the nations in the world the set of beliefs which he thought best, he would inevitably—after careful considerations of their relative merits—choose that of his own country. Everyone without exception believes his own native customs, and the religion he was brought up in, to be the best; and that being so, it is unlikely that anyone but a madman would mock at such things. There is abundant evidence that this is the universal feeling about the ancient customs of one's country (Herodotus (1954).." Isolated communities in which little change is introduced may experience few challenges in resolving family disputes. However, continued globalization has resulted in fewer and fewer isolated communities resulting in greater challenges for problem solving when cultures clash. Such cases can challenge family law and family mediation.
I was involved in a case in which a young father from Africa and his American born wife were in great conflict over female circumcision. The couple were married and lived in the United States and had a child together. The young father wanted his one-year old daughter circumcised. He argued that religious freedom in America allowed him the right to practice female circumcision as mandated by his religion. The mother was of a different faith tradition and she protested stating it was against her culture and law. She stated that she was fearful for the child’s welfare after her husband revealed that he had already arranged with a woman in his immigrant community to perform the operation on the child. The father understood that female circumcision was legal in his country of origin and refused to accept that it was illegal in the USA. He rejected any notion that female circumcision was mandated by his faith tradition and he continued to defend his position stating that had no options but to insist that this be carried out.
The case was not resolved through mediation. The parties divorced and the courts placed the father under supervised visitation with his child. Had the case been adjudicated in the father’s country or origin the outcome would more-than-likely have been different. Intimate cultural practices can cause disputes within families that are so great they tear the family apart. International family mediators must possess a level of cultural competency that, until now, had been greatly underestimated. In regard to mixed culture marriages, intimate cultural practices and traditions may be considered so private that they may not be revealed until after marriage or a child is born or other life event.
Parents generally teach their children those things that they feel are important to themselves. The roles and duties assigned to gender often reflect the ideas and notions of their parents. For example, it is most common for children to be dressed in a manner that is specific to their gender. It is common for parents to pass on their faith traditions, celebrations, folklore, and parenting skills. Parents most often believe that the parenting choices they make is based on their child’s best interest. Parents and primary care givers deeply influence a child’s identity. Gross-Loh (2013) offers a perspective of parenting that goes beyond culture. “I have come to understand that many parenting practices can be traced not just to culture, but also to where a culture lies on the continuum between promoting individualism and promoting community cohesiveness…there is not more revealing (if humbling) way to see what we’re doing and why we are doing it than to look at ourselves through the eyes of another culture.”
When a child is born, a parent may begin by singing traditional lull-la-byes. They may have them baptized, circumcised, have their ears pierced, or registered as a citizen of a country other than the one they were born in. Cultural influences on a child includes sleeping arrangements, hair styles, and coming of age traditions. The child may also be influenced by more than one culture. Additional cultural influences may be introduced to the child living in a multicultural environment. Millennial children are most likely to be multicultural as a direct consequence of the Internet, international education opportunities, and travel abroad. Children in multicultural homes and environments are not mono-cultural but rather are a culturally enhanced hybrid, as each combination of cultures introduces different choices for adaptation and valuation. “…familial ethnic socialization – the extent to which parents teach their children about (and expose them to) the language, symbols, and traditions from the family's heritage culture… most strongly differentiated bicultural individuals from those adopting other approaches to acculturation (Schwartz & Unger, 2010).” In short, children do not always hold the same cultural ideas and notions as their parents, but are more likely to be multicultural hybrids. This is most important for international family mediators that include children in mediation sessions.
A child may be a third culture kid as a result of growing up in a mono-cultural family living in another country. These are usually military, diplomat, missionary, or corporate families. Still yet, a child might be an immigrant, moving from one country and into another. When a child is raised in a country or culture that neither parent originates from, they are considered cross cultural or multicultural (Pollock & Van Reken, 2009). The parents of multicultural children may compete with each other to teach their children their value systems to the extent that they denigrate the culture of other parent to the child and isolate the child from the other parent’s cultural traditions. “Biculturalism – as well as other approaches to acculturation – does not develop in isolation. Rather, it is likely a product of cultural and contextual forces that steer young people toward some cultural options and away from others (Swartz & Unger).”
Dan García, assistant professor and researcher in social and cultural anthropology at the Universitat Autònoma de Barcelona suggests that it is not culture but rather social class that is more important in multicultural marriages (exogamy) and bringing up children. His arguments are based on a case study of African-Spanish couples in Catalonia. García concluded that these mixed cultured families tend to deal with culture rather than experience a clash of cultures (García, 2006). These findings suggest that cultures can and do blend. Still yet, are those that would argue that individuals pick and choose the cultural norms they adopt, motivated by their own needs (Lui & Stack, 2009). Children in mediation may express ideas not shared by either parent. They can possess a sense of creativity in problem solving neither parent possesses.
When Culture is the Conflict
Bi-cultural marriages present complex family dynamics when parents differ on child-rearing notions. “Cultural customs can be the foundations for the breakdown of a marriage (Benokraitis, Nijole, 2010).” Nearly 1 in 7 new marriages in the USA were bicultural in 2010 (Chen, 2010). The rate of divorce in bicultural marriages is higher than in mono-cultural marriages, and the rate of bi-cultural marriages continues to grow (Donovan, 2004). Data from the Survey of Income and Program Participation (SIPP) suggests that marital dissolution was found to be strongly associated with the race or ethnicity of the individuals in the marriage, while interracial marriage did not present an elevated risk of divorce (Zhang & Hook, 2009). Evidence suggests that the level of conflict within multicultural families is significant, including disputes centering on parenting ideals and each parents views on what is in the child’s best interest. The level of conflict in bicultural marriages may place the couple at greater risk for domestic violence (Chin, 1994).
“The family is not merely a conduit for larger environmental and cultural influences; rather, parents can actively decide how they want their children to acculturate, and their attempts to socialize their children culturally can complement – or clash with – the effects of the larger cultural context. This implies a degree of agency and intentional action on the part of parents, consistent with a developmental-contextual perspective (Swartz & Unger).” It is possible that both parents have valid arguments for cultural parenting practices. Specific practices may hold advantages within their isolated cultural communities, but may not transfer as advantageous outside of those communities. Because individuals believe their culture is the best, and because a parent wants what is in the best interest of their child, conflicts may become intractable.
I was involved in a case in which a father abducted his child from the United State to his home country in the Middle East. When I asked why he had taken the child, he responded that it was his religious mandate that his child be raised according to his faith tradition. He went on to explain that he felt that if the child were raised in the United States it would compromise his efforts to fulfill this parental responsibility and duty. Therefore he made the unilateral decision to wrongfully remove the child from the influences of the United States and the other parent. Not only is this a true case, but I have encountered dozens of like cases over the past twenty years. As a result, I have come to understand that religion conflict is central in many multicultural child custody disputes and it is not given the importance or attention necessary in family mediation to allow the parties the opportunity to address this issue.
Interfaith conflict resolution is a small component within the many complex areas of multicultural disputes including international family mediation. Training for interfaith conflict resolution is often found in peace building efforts, but almost unheard of in family mediation. There exists a great need for interfaith conflict resolution training for family mediators, especially those inserting themselves into international child custody disputes and international family mediation. The greater the difference in parental cultures; the greater the risk for a child to be abducted ( , 2011).
Research has identified a number of characteristics found in abducting families, including the notion that parental abductors believe that they know what is best for the child above all others. This supports cultural ideas proposed by Sumner (1906) and Herodotus (1954). The majority of international parental kidnappings occurred in families with parents originating from different countries, with the abducting parent returning to his country of origin with the child after marital break-up (Johnston, Sagatun-Edwards, Blomquist and Girdner, 2001). Survey suggests that 61.8% of international child abductions from the USA were committed in families where each parent held citizenship in another country and an additional 16.5% held dual citizenship, with 83% reporting they were of different nationalities. Breaking it down even further, the survey reveals that 58% of abducted children came from homes where their parents held different faith traditions, 69% of parents were of different ethnicities (Chiancone and Girdner, 1998). International family mediation always, without exception, includes participants from different cultures. This suggests then, that a certain percentage of cases present a significant risk for a parent to wrongfully remove a child from the other parent or to internationally abduct the child. The American Bar Association, Center on children and the law completed a series of research projects on parental kidnapping and determined that traditional family mediation was not appropriate for those cases. It concluded that appropriate models considered culture by way of introducing culturally supportive attributes.
Cultural influences on problem-solving
“The environmental and social demands from which problem-solving strategies develop differ between cultures (Güss & Tuason, 2009.).” The culture of children as it relates to their inclusion in child custody mediation may behave very differently than adult participants. Scholars argue that children develop problem solving skills within their awareness of their environment, especially the context and situations through social interaction with others (Rogoff & Lave, 1984). “TCK [third culture kids] usually develop some degree of cultural adaptability as a primary tool for surviving the frequent change of cultures. Over and over TCKs use the term chameleon to describe how, after spending a little time observing what is going on, they can easily switch language, style of relating, appearance, and cultural practices to take on the characteristics needed to better blend into the current scene (Pollock & Van Reken, 2009, p. 100).”
Best interest of the child are defined by legal institutions. “…institutional systems like legal and political systems, as well as spiritual values (philosophies, religions and moral standards), are hard cultural forms which do not have strong links with specific and relatively less flexible values that are very difficult to change. Lifestyles of a specific culture normally evolve around certain institutional structures like political and legal systems, and root support of these systems are spiritual values of the culture (Tong & Cheung, 2011).” Culture influences not only how parents and children problem solve, but also how mediators and other institutions problem solve. Associate Professor of Social Work at the University of British Columbia, Edward Kruk, says “Children’s needs for protection from parental conflict must be addressed within any co-parenting arrangement after separation, and a full range of supports must be made available to parents in high conflict situations (Kruk, 2012).”
Mediating in A Multicultural Environment
Worldwide, family mediators have acknowledged the need for greater attention and response given to culture in family mediation. “If law and acculturation were once connected, perhaps there should be more interdisciplinary contact now, especially considering the liberal, activist orientations of many acculturation researchers. Acculturation is integral to several areas in law (Rudmin, 2003).” International family mediators quickly come to appreciate the differing expert opinions on the definition of “cultural competency”. Mediation is practiced differently and understood differently as a direct result of cultural identity and is governed formally or informally by rules reflecting cultural ideals even within legal frameworks. “The law struggles with the fact that rights desirable for some individuals may be problematic for others (Greene & Heilbrun, 2010).
Debates on what constitutes legal advice during mediation, and whether or not evaluative mediation is really mediation, continues to challenge our notions of alternative dispute resolution within multicultural contexts. Arguments supporting mediation approaches from ethnocentric or mono-cultural viewpoints continue to be based on ideals formulated by individual mediators and/or their dominate institutional organizations. Since colonization suppressed or totally extinguished certain cultural practices, mediation within a multicultural context demands an aggressive, concerted and directed effort on the part of the mediator to understand why they are practicing their craft as they do, aside from colonial rhetoric. The late professor of politics at the University of Canterbury, Jacob Bercovitch argued, “Mediators can engage in an intractable conflict only after a thorough and complete analysis of the conflict, issues at stake, context and dynamics, parties' grievances, etc. Intractable conflicts are complex and multi-layered. A mediation initiative is more likely to be successful if it is predicated on knowledge and understanding rather than on good intentions only. A good analysis and a thorough understanding of all aspects of the conflict are important prerequisites for successful mediation in intractable conflicts (Bercovitch, 2004).”
Multicultural Exchange and Problem Solving
Individuals accept alternative dispute resolution methods that they respect and consider legitimate. Studies have supported the notion that people favor mediation processes that offer them control of the process supported by a neutral third party (Greene & Heilbrun, 2010).
Not only is the problem solving between family members influenced by culture, but also third party neutrals, and family mediators. More research, linking cognitive psychology to the problem-solving practice, needs to also focus on the third party intervener’s cognitive factors and distortions, which surely will influence how that third party directs or facilitates the process (Byrne, 2003). Some years ago I was contacted by a distinguished colleague with a request that I co-mediate with him on a case involving disputants from the same isolated rural area where I lived. He explained that he was not familiar with the culture of the disputants and he thought because I lived in the area of the disputants that I might. I agreed to co-mediate. The parties arrived at the court house to mediate with their land maps and their lawyers. The parties knew each other well with their fathers, now deceased, having been friends and making the original land agreement which was now in dispute. The parties were respectful and immediately rolled out their land maps on the table and began constructive dialogue without prompting by either mediator. In fact, one could say both lawyers and mediators were essentially ignored as the negotiated offers and counter offers. My colleague looked to me with a questioning look. I whispered to him that we should not interfere.
After a while everyone agreed to a break during which time my colleague shared with me that he felt a need to “do something” as he was called to mediate. He was uncomfortable just sitting in the room quietly while the parties negotiated. I reminded him that he had called me to co-mediate because he thought I might understand the culture. In this he was correct. Not only did I understand the culture, but I was part of this culture. “This deal was done before they came to mediation. Their fathers were friends. They chose to mediate as an alternative strategy to litigation in honor of their father’s lifelong friendship. It just took them a while to realize it. They know what they are going to do to settle this.” I said. After the short break mediation resumed and the parties announce their agreement and thanked us for our service. My colleague was unsure of the details of the agreement and how he should write it up. The parties simultaneously announced that their attorneys would be drafting the agreement. The seven year old land dispute had been formally resolved in less than an hour. My colleague looked at me dumbfounded. “It was about honor” I said. “that is all.” Sometimes people mediate so that it could never be said that one party won or the other lost. How an individual define personal honor is rooted deeply in their cultural identity. Mediators and mediation processes must allow flexibility and room for the parties to work out their own solutions.
Reframing within Cultural Context
Reframing within cultural context requires intimate knowledge of cultural practices. "Expanding our knowledge of cultural perspectives enriches our understanding of the complex of traits, skills, habits, values, and abilities that individuals bring to the process of problem solving" (Brenner & Parks, 2001)”. Reframing is not limited to the substitution of words or paraphrasing. Reframing the notions and motives of events allows the parties to view the conflict from a different perspective. “…support regarding culturally based conflict may be especially beneficial if reframed by another person who has a dual frame of reference (Cookston, Olide, Adams, Fabricius, & Parke, 2012). The following case illustrates this concept.
A young Egyptian American father contacted me with a request that I assist him in returning his infant son to the United States. He explained that his wife had traveled to Egypt with their infant son and refused to return to the United States. I learned that this young father had come to the United States as a very young child with his parents. His family maintained their intimate cultural traditions and connections abroad. When it was time to marry, the young man entered into a traditional arranged marriage with a young lady chosen for him from Egypt. She was immediately brought to the United States to live with her new husband and his parents.
The young wife spoke no English, had no relatives in the United States, no job, no friends, and she did not drive. The young couple got pregnant within a matter of months and after the birth of their son, the young mother’s loneliness for home was unbearble. She was sad – even depressed. The young father decided it would be good for his young bride to return with the baby to Egypt and spend a few weeks with her family. But after a few weeks, the young mother said that she was not ready to return. As weeks passed the young father grew impatient for his wife and son to return from Egypt. Tensions between the young couple grew and soon the young wife announced that she would never return to the United States.
She asked her young husband permission to grant her a divorce under Islamic law so she could marry another. The young mother also demanded that he fulfill the terms of their Islamic marriage contract and pay her $5,000 mahr. Again, the young husband refused. The young man was upset and could only think of his infant son. He responded by demanding the infant. She agreed to give him the infant when he granted her a divorce and paid the mahr. The young husband refused. The young couple entered into a stalemate resulting in the family members positioning themselves against the other. The young man reported that his in-laws had threatened his life and the young couple’s dispute had become intractable.
The young mother could not get a divorce in Egypt without the permission of her husband. Without a divorce she could not get remarried; something she had expressed a desire to do. As well the terms of the parties marriage contract were enforceable, including the mahr. Islamic law also supports the transfer of child custody to the father should the mother remarry. While the parties resided I the United States, it was their cultural and religious traditions that they both observed s being the legitimate law regarding their dispute. Interestingly, however, the bicultural nature of the father also recognized U.S. law, leading him to seek legal custody of the child in the United States.
Acting in the capacity international child abduction consultant I recommended that the young father grant the divorce and pay the young mom the $5,000 USD in return for the child. But the young father was angry at his young wife, and he would have no part of a solution that he perceived as challenging his honor. Months passed. I stressed to the young father the importance of coming to a mutually beneficial agreement for all concerned. But he was too angry to end the dispute so easily. He wanted to punish his young wife for leaving him. He wanted to leave her married and unable to remarry to start a new life. He wanted her to live without a child and without money. He wanted to her to suffer, forever be trapped, living with her parents while he has the child, his money and the freedom to take another wife. The young father’s frustration and anger grew, and he began entertaining the idea of snatching the child back. He spoke about hiring individuals that would go to Egypt and forcibly take the child. I advised the father that such efforts rarely are successful and when they are, the children suffer emotionally into adulthood. I explained that parents have been imprisoned for such efforts, and even worse, mercenaries, parents and even children have died in such efforts.
I had witnessed such pain, frustration, and anger many times in such cases. In order to move the case forward I would need to reframe the dispute and attempt to assist the father in thinking outside of his cultural notions. My dialogue with him went something like this.
Me: “How much money do you think your son is worth”?
Young Father: “There is no price.”
Me: “Would you pay $1,000 for your son?”
Young Father” “Of course. That is nothing.”
Me: Would you pay $10,000 for your son?”
Young Father: “Yes, of course. There is no amount of money I would not pay for my son.”
Me: “Lets change this around. How much would you sell your son for?”
Young Father: “ I would never sell my son! There is no amount of money in the world that would make me sell my son! Are you crazy?”
Me: “So you think it is crazy for a person to sell their child?”
Young Father: “Absolutely. Anyone that would sell their son does not deserve to have the son.”
Me: “Would you buy your son for $5,000?”
The young father was silent. He contemplated the question. He understood how I had reframed the situation. Even so, he had to think on it for a while as it did not come easily for him. Then he made arrangements to satisfy the divorce requirements his young wife had demanded as well as the financial demands. The young mother had already positioned herself to marry another and immediately gave the infant to his father.
Culture shapes every individual. It is complex and influences how individuals define disputes as well as how they problem solve. International family mediation in a multicultural context requires an understanding and respect of cultural dilemmas for all parties participating in mediation including children. The communication profiles of mixed culture couples suggests that at least one party speaks a different language other than their native language (Cools, 2006) Multicultural mediation should support communication processes beyond simple translation services and recognizes reframing as a way to introduce parties to perspectives, not necessarily shared by the mediator. “Learning foreign languages is an intercultural communication issue because cultural assumptions and linguistic expectations are important elements in the process of foreign language learning (Tong & Cheung, 2011). Finally, international family mediation is more than just a term adopted buy family mediators that handle cases of visitation across international borders or international divorces. It is a specialized area of family mediation, behaving as an extension of international treaty under international family law, overseen by government agencies such as the U.S. Department of State, Office of Children’s Issues. Other countries have also established federal offices to oversee international family mediation within their jurisdictions. Greater cultural competency and understanding of intimate cultural practices associated with marriage, child birth, parenting, coming of age, and gender may provide the international family mediator with greater ability to support significantly greater creative problem solving dialogue resulting in dispute resolution.