An article in the International Herald Tribune and New York Times for today caught my attention and my initial negative reaction:

Outsourcing to India Draws Western Lawyers By HEATHER TIMMONS Published: August 4, 2010 http://www.nytimes.com/2010/08/05/business/global/05legal.html

This looks, at first sight, like another example of industries relocating, the race to the bottom, the saving of costs at one end – though not necessarily the passing on of the savings (though that conclusion is unfair, given the recognition by law firms that a lot of the work in case preparation does not need the hefty cost of a lawyer, associate, or paralegal).

But from a different perspective, how different is this from the ADR movement of the last 30 years? After all, what we’ve been arguing for is a change in ways we effect access to justice (and indeed, in the ways in which we characterise justice, less as a matter of law than of resolution and fairness). Is it too big a leap to say – only slightly tongue in cheek – that mediation is a form of outsourcing dispute resolution? And if, as I suggested a few posts back, we’re talking about forms of “distributed decision making” when we deal with mediation, arbitration and so on, then in practice this is not a lot different from outsourcing – except that it stays in the same country.

This header needs immediate explanation. In a remarkable review article, published in Behavioral and Brain Sciences, authors Joseph Henrich, Steven J. Heine, Ara Norenzayan examine the bias inherent in most current behavioural science research. The full citation and download information is:

Henrich, Joe, Heine, Steven J. and Norenzayan, Ara, The Weirdest People in the World? (May 7, 2010). RatSWD Working Paper No. 139. Available at SSRN: http://ssrn.com/abstract=1601785

See also commentary on a Neuroanthropology blog http://neuroanthropology.net/2010/07/10/we-agree-its-weird-but-is-it-weird-enough/

The core and very important point is this: most behavioural science has been based on empirical studies of WEIRD populations. That is, samples are predominantly taken from – and reflect the responses of – Western, Educated, Industrialised, Rich and Democratic nations. More narrowly than that, the samples are predominantly graduate and undergraduate students of the particular discipline.

There are in fact two important points here: the first is the problem of the sampling bias (and the conclusions too readily drawn about all of human nature and conduct from those samples); the second – and probably more interesting – point is that the “western” cultures typically represented are themselves “outliers”; that is, they are typically at an extreme end of any empirical spectrum.

I’m reminded of the experience a few years back of working in Dubai with a well-known and internationally respected group of negotiation trainers who began the presentation to an audience of smart, savvy people, with words to the effect that we – the trainers – were going to present “global best practice”. You could almost hear the shutters going down!

By way of contrast, the fields of conflict resolution and mediation are rich with practice and literature reflecting the awareness of cultural diversity in perceptions of and responses to conflict. But there remains, as Henrich and colleagues point out, a potential for us simply not to see some key areas where the differences lie. If there is conflict in all cultures; and if all cultures have some forms of negotiation, what we can presumably find are the “global” features of such behaviours.

One of the co-authors of this new paper, Ara Norenzayan, has been at the forefront of conducting research about the impact of culture on perception and cognition – in order to counter the assumptions that there must be some foundational attributes that all humans share, such as our cognitive “hard wiring” and our visual perceptions of “objective” phenomena. [See, for example, A Norenzayan, E E Smith, B J Kim, R E Nisbett “Cultural Preferences for Formal versus Intuitive Reasoning,” Cognitive Science (web version, n.d. And especially see the work of one of Norenzayan's co-authors: Richard E Nisbett, The Geography of Thought: How Asians and Westerners Think Differently  . . . and Why, (New York, Free Press, 2003).

For those tempted to read the full WEIRD article, here is the abstract:

"Behavioral scientists routinely publish broad claims about human psychology and behavior in the world’s top journals based on samples drawn entirely from Western, Educated, Industrialized, Rich and Democratic (WEIRD) societies. Researchers—often implicitly—assume that either there is little variation across human populations, or that these “standard subjects” are as representative of the species as any other population. Are these assumptions justified? Here, our review of the comparative database from across the behavioral sciences suggests both that there is substantial variability in experimental results across populations and that WEIRD subjects are particularly unusual compared with the rest of the species—frequent outliers. The domains reviewed include visual perception, fairness, cooperation, spatial reasoning, categorization and inferential induction, moral reasoning, reasoning styles, self-concepts and related motivations, and the heritability of IQ. The findings suggest that members of WEIRD societies, including young children, are among the least representative populations one could find for generalizing about humans. Many of these findings involve domains that are associated with fundamental aspects of psychology, motivation, and behavior—hence, there are no obvious a priori grounds for claiming that a particular behavioral phenomenon is universal based on sampling from a single subpopulation. Overall, these empirical patterns suggests that we need to be less cavalier in addressing questions of human nature on the basis of data drawn from this particularly thin, and rather unusual, slice of humanity. We close by proposing ways to structurally re‐organize the behavioral sciences to best tackle these challenges."

The whole article is well worth reading.

The relevance to mediation? Simply this: mediation as a subject of behavioural and comparative study risks reflecting the same empirical bias, even where there are conscious attempts to recognise the differences across cultures. As early feminist theory argued, the challenge is to conduct one's research and analysis without falling into the trap of assuming that one mode of perception or conduct was the "norm" and that the other was in some way deviant.

There's an inherent irony in thinking about this issue of perception and practice in mediation, in that we know that we (the WEIRD ones) borrowed the basic idea of mediation from non-Western, small-scale, non-industrialised countries. And then we proceeded to establish a set of practices, processes and norms that retained some of the basic structure of mediation (i.e. third party intervention), but reflected a radically different set of assumptions about autonomy, individualism, participation, and the norm-generating role of mediation.

What the authors make clear is that how we see is very largely a function of the context in which we have learned to see. And, perhaps with a slightly mischievous grin, they comment that the typical sample group for behavioural science studies are the children of WEIRD parents - that is, typically urban, educated and, more importantly, from a "culturally and experientially impoverished environment". For those who live in and celebrate the richness of the modern urban world, it might seem odd to be told that this is a "culturally impoverished" environment. But what the authors have in mind here is the point that, in the WEIRD world, knowledge and perception are constrained by the physical environment, especially in matters relating to perception of the natural world. (Conversely, of course, Karl Marx would sniff derisively about the idiocy of rural life . . . but this is not a contest about the moral or political preferability of rural or urban life!)

The authors also make the point, in commenting on the assumption that the WEIRD world can be the basis for generalisation and on the fact that the WEIRD world itself is out on a limb, that if we were to claim general and global conclusions on the basis of studying, say, a small-scale, developing, hierarchical society, there would surely be objections about the inadequacy of the science.

At the very least, the article is a call for humility in the breadth of conclusions we draw about "the world" on the basis of either perception or science. As Nisbett asks:

“If people really do differ profoundly in their systems of thought – their worldviews and cognitive processes – then differences in people’s attitudes and beliefs, and even their values and preferences, might not be a matter merely of different inputs and teachings, but rather an inevitable consequence of using different tools to understand the world.” [xvii]

For our purposes, perceptions of conflict and mediation cannot be isolated from the participants’ experiential world and, to the extent that relationships to others lie at the heart of conflict mitigation and transformation, we also need to know how – in context – participants have learned to see others. This can point to differences at an individual level; but it is also tested in cultural and religious settings, to indicate the extent to which the subject’s social context makes it more likely that they will be field dependent or independent. And, the greater the degree of social control, specificity of normative constraints, the more likely it is that the subject’s perceptual/cognitive mode will be field dependent (and vice versa). [Nisbett, citing Z Dershowitz, “Jewish subcultural patterns and psychological differentiation,” International Journal of Psychology, 6: 223-231 (1971)]

Thus (and to close off this comment on perception, conflict and ‘normality’), consider Nisbett’s point”

“East Asians live in an interdependent world in which the self is part of a larger whole; Westerners live in a world in which the self is a unitary free agent . . . Easterners value fitting in and engage in self-criticism to make sure that they do so; Westerners value individuality and strive to make themselves look good. Easterners are highly attuned to the feelings of others and strive for interpersonal harmony; Westerners are more concerned with knowing themselves and prepared to sacrifice harmony for fairness . . . Asian avoid controversy and debate; Westerners have faith in the rhetoric of argumentation in arenas from the law to politics to science.” [76-77]

The idea is catching on: using our capacities for language, conversation, talking, engaging with each other . . . might actually make a difference. Legal anthropologist Simon Roberts referred years ago to the choices we have between fighting and talking (in Order & Dispute, Penguin, 1979). And everywhere we turn there seems to be a recognition that what we have – and what we may risk losing – is the talent for dealing with things through talking. Just do a quick Google check on “conversation” and see how many hits that produces – and, perhaps more to the point, how many new titles of books and articles it throws up.

This is all good. And it’s also a significant development of the specifically dispute-oriented tools such as mediation that we now talk more widely of dialogues and conversations. For one effective recent example of this, see the work of the Meta-Culture working group, that is part of the Public Conversations Project. Specifically, have a look at the Meta-Culture project on developing dialogue for conflict resolution in India.

Two things are worth noting at this stage about this kind of development:

1. first, the specific weaving of dialogue, conversation, and mediation and dispute resolution tools; and
2. second, the recognition that, while all these terms will be widely understood, the “culture” of dialogue is fairly new – at least in the sense of a conversation of equal parties.

That second point is interesting in the context of this blog, simply as a reminder that the words don’t come out with the same meaning or the same set of understandings. So at the outset of any process, it’s going to be necessary to gain mutual understanding on just what is meant by, for example, mediation or dialogue.

At it’s simplest, it is likely to be the case that in more traditional and hierarchical societies, dialogues are not intended as genuinely two-way decision-making processes, but are rather a form of information sharing (it’s not unlike my recent discovery that “corporate communication” tends to be seen more in terms of the world of advertising and marketing than the requirements of effective communication in corporate and employment contexts).

In his story The Fairy Tale of the Green Snake and the Beautiful Lady, Johann Wolfgang von Goethe tells of a snake, luminescent through having swallowed gold pieces, is asked by the Golden King what is more glorious than gold. The snake replies, “light”. The King then asks, “What is more refreshing than light?” The snake replies, “conversation.”[1] Equally, Jerome Bruner refers to our “narrative gift” as “one of the principal forms of peace keeping”[2]. And yet it seems that this is something that is at risk[3], and a social resource that we need to remind ourselves of.

[1] JW Von Goethe, The Fairy Tale of the Green Snake and the Beautiful Lady, trans. Donald Maclean, Grand Rapids, MI, Phanes Press, 1996, p.16. It’s interesting to note that Thomas Carlyle’s 1832 translation renders the original “das Gespräch” simply as “speech”, as the capacity to talk. See http://wn.rsarchive.org/RelAuthors/GoetheJW/GreenSnake.html and for the original text: http://www.digbib.org/Johann_Wolfgang_von_Goethe_1749/Das_Maerchen

[2] Acts of Meaning, Cambridge, MA, Harvard UP, 1990, p.95

[3] ABC Radio – 2007-01-06 “Conversation: is it a dying art?” (Lingua Franca podcast – no longer available on iTunes)

Here’s another open question about mediation in general and with possible implications for the way in which the role of mediation, and related processes, might be implicitly viewed in some parts of Asia.

The idea is this: the concept of “distributive justice” is likely to be well enough known, as a way of thinking about the criteria and principles of justice in the allocation of benefits and costs of social life. Distributive justice concerns processes of decision making and the justification of particular outcomes – that is, what the allocation of the pie looks like once the distribution has been done.

What I have in mind in thinking about mediation involves a bit of a shift away from that focus on the justice of outcomes, and involves the recognition that mediation as an essentially private, participatory process, shifts us away from the main centralised forms of decision making and conflict resolution – Parliament and Courts – towards, as the word implies, a wider distribution of decision making, dispute resolution, and even rule-making powers. Of the last, the most significant examples will be in the field of negotiated rule-making and consensus building, which can also be recognised by and integrated into the government processes at the highest level.

In part this comes to mind through a practical interest in consensus building, both in political setting and in post-conflict settings. In part too it comes from thinking about a parallel – the nature and structure of the Internet. The idea and the structure of the Internet involve open texture, increasingly open source software and applications, and the principle or value of access.That this might not survive is the subject of sustained commentary by Jonathan Zittran in his book, The Future of the Internet – and How to Stop it (Yale UP, 2008): one of his central concerns is that the open texture which has made the Internet possible may increasingly be subject to the constraining preferences of commerce (and of the intellectual property interests of major software and hardware manufacturers); and the physical parallel to this is in the current open nature of computers which – by and large – allow almost anyone with the time and the talent to write software and applications. This seems to me to be a prime example of a distributed process and character; and it works – almost despite that character – to create largely congruent practices.

My partly formed analogy is this: the Internet begins with this open texture and networked structure; it depends on this openness to work, at least in its present form. That this may change, and become less open, is the concern of observers like Zittran. Dispute resolution, at least in the West, works in the other direction: the centralised processes now have parallels in the decentralised, dispersed processes like mediation. Of course, in many jurisdictions, the decentralised nature is only partial in that mediation is a court-linked or court-sanctioned process. But nevertheless, the decisions are made, as it were, off-site.

The comparative question is this: to the extent that processes like mediation involve untethering dispute resolution and decision making from the “mothership” of the formal institutions (even if doing so is implicitly sanctioned by the legal system) what variations are we likely to see between Western and Asian jurisdictions? Seyla Benhabib suggests (“Reclaiming Universalism: Negotiating Republican Self-Determination and Cosmopolitan Norms,” The Tanner Lectures on Human Values, March, 2004, 139ff, online version), that what we have,  and what we need to encourage,  is a “jurisgenerative” politics; that is, a process of greater participation, deliberation and, in the end, rule-making as an essential part of the democratic and cosmopolitan project. And mediation, both as private dispute settlement and – increasingly – as a process for the resolution of policy, planning, and high value disputes – is surely one example of that form of decision-making. Leave aside for the moment the other discussion to be had about public and private dispute resolution: the question that’s interesting for me here is that this is, by design or by accident, a process of distributing decision making. In his magisterial History of the Common Law, Professor Toby Milsom suggested that the history of English legal institutions is marked by the dual processes of centralisation and specialisation  - the former, in terms of the physical and political location of state authority; the latter in terms of distinct functions of legal and judicial institutions. The next step in at least the Western history of law and decision making – through the rise of arbitration and mediation – is the process of decentralisation of decision making and rule making. This is the distributed decision-making I began with.

However, this development necessarily loosens the central hold of the conventional institutions of law- and decision-making. I observed one early response to this implication of mediation while looking at the non-appearance of mediation in Germany in the early 1990s – where the arguments at least for caution in this regard were based on the need for constitutional propriety and the need for consistency and publicity of rule-making in the legal system. There was, for example, a concern with the “reprivatization of social tasks and problems” [D Jansen, "Parallelen in Sozial- und Rechtspolitik: Ein Vergleich der Diskussion zur Selbsthilfe und zu Alternativen zum Recht," Zeitschrift für Rechstsoziol. 9: 1 (1988)]. That these concerns are not a total bar to the development of mediation is clear in the now robust development of mediation in Germany.

If, as discussed widely in respect of Asian social and political conventions (and in earlier blog entries) there is a preference for the hierarchical structure, for clearer authority structures, then it may follow that mediation will be and remain more closely tied to those structures. This doesn’t make it any less like mediation; but it does mean – I think – that mediation is less likely to be seen and developed as the distributed rule-making process that it is becoming in other parts of the world.