excerpted from:  African Americans  "Are Not Carbon Copies" of White Americans - the Role of African American Culture in Mediation of Family Disputes , 13 Ohio State Journal on Dispute Resolution 405, 420-435 (1998) (280 Footnotes)

African American Attitudes about Dispute Resolution and Other Matters That

May Affect Mediation

Race and ethnicity are intricately linked to culture. Accordingly, African American people's race and culture are inextricably connected:

[D]ifferent cultures value their common elements differently, insofar as one puts the accent here, another there, and that is the ordering and the relations of elements to one another that determines the differences between the cultures. Thus, culture is not a static entity, but ever changing. The backdrop of this process is the continuous and unifying stream in [African American] life which is a combination of Africa, the American south, slavery, poverty, migration, and racism. It is a stream expressed in music, family life, language, love, religion, and countless other manifestations of a people's orientation to the world that constitutes [African American] culture.

In the previous section, I concluded that culture is of critical importance in mediation of family issues. Because race and culture are intertwined, race becomes an integral part of mediation too.

Empirical studies have shown that race affects negotiations. For example, when adversaries are members of the same race, they bargain more cooperatively with one another. Same-race disputants are more cooperative because they trust each other more easily than they trust people of different racial groups. In contrast, intercultural adversaries endeavor to "maintain a certain face or posture in the eyes of someone different." This posturing influences the parties' efforts to solve their problem.

Differences between white and African American cultures must be explored because traditional dispute resolution systems are universalistic and color-blind. Usually, white males design American dispute resolution systems based upon white middle-class families they selected as model family structures. In the process, the creators ignored unique characteristics of African American families and families of other diverse cultures.

Systems based on white family prototypes automatically exclude African American families that do not have the characteristics of the white family that is proffered as the model family. A more appropriate system would reflect cultural values of people of color and their divergent social and physical environments. Thus, mediators should tailor mediation sessions to African American family functioning in accordance with normative behavior in other African American families instead of relying upon inappropriate white family norms.

Furthermore, race is a potential concern during mediation because the percentage of marital breakups among African American families is very high. The divorce rate for African American couples is much higher than the rate of divorce among white American couples. For example, in a 1992 survey, twenty-three percent of African American men and thirty-nine percent of African American women reported that they were divorced. Those percentages were compared with divorce statistics for all other people. Only thirteen percent of all non-African American men and eighteen percent of all non-African American women reported that they were divorced.

Because numerous African American marriages end in divorce, it is conceivable that many African Americans will appear before tribunals to resolve child custody, child support and other family issues. Some of them will choose to forego the traditional adversarial method of dispute resolution and mediate their disputes. Therefore, this section addresses some general aspects of African American culture that may influence an African American's participation in mediation sessions.

However, mediators should exercise caution in attributing stereotypical beliefs to all African American families. Each African American family and each member of that family is a unique individual. The practices discussed may not apply to all of them. For instance, some proponents argue that African American family values and practices vary along class lines. Instead, mediators should consider whether a particular dispute resolution model is appropriate for the specific African American family with whom they are working. Yet, mediators may rely upon empirical data to help them understand individual African American behavior. The discussions in the following paragraphs highlight African American cultural traits that mediators should recognize and respond to, if appropriate, for ensuring productive mediation sessions.

"Competent mediation requires awareness and understanding of all issues relevant to the disputants and the matter to be resolved. This accomplished, the mediator is charged with determining the appropriate response regarding the issue's introduction into the process." To avoid misinterpretations and misunderstandings that may have negative effects on mediation sessions, mediators should be educated about cultural practices and issues that affect how African American families operate. Ideally, a knowledgeable mediator will be able to "identify the elements of the party's behavior that may be attributed to living in a hostile environment, to a coping style, and what might be characterological." More importantly, mediators should " l earn to acknowledge and to be comfortable with their client s' cultural differences."

More specifically, mediators involved in resolution of family disputes should endeavor to understand dissimilarities between African American and white familial experiences. Knowledge, respect and acceptance of differences between white and African American families is relevant because African Americans and white Americans do not have identical backgrounds or views of the world. In a speech in 1995, President Clinton declared that "white Americans and African Americans see the world in drastically different ways."

A. Racism

A pivotal difference between African American and white participants is that racism has psychological affects on African American people. The intrusion is constant. The feeling of "pain, cruelty, stress, and debasement" are symptomatic of racism. As a result, African Americans' world view is shaped by decades of oppression, institutionalized racism and economic deprivation.

Another consequence of racism is that African Americans suffer "unique psychological, environmental, and economic stresses" that affect their family life. So, in addition to normal family difficulties that all kinds of families experience, African Americans have to cope with added marital strains of racism and discrimination. For a proper understanding of contemporary African American family life, a mediator must examine cultural influences and methods by which African American families adapt to segregation and discrimination. Therefore, as mediators attempt to assist African American families to resolve domestic disputes, they must be sensitive to how racism and prejudice have affected African American family life. As indicated, racism may shape African American participants' interaction with each other and their facilitator.

B. Mistrust

Before the mediator can even begin to assist the parties to define and resolve their issues, she may have to win the participants' trust. Many African Americans distrust non-African Americans, especially white Americans. This suspicion of whiteAmericans derives from direct or indirect exposure to racism.

A complete history of the injustices African Americans have endured is beyond the scope of this article. However, a few examples may help mediators to understand the origin of African Americans' reluctance to trust their white counterparts. White Americans did not allow African Americans to vote, to be educated, to be witnesses or jurors in adversarial proceedings, to travel freely or to marry whomever they wanted to marry. White people lynched and murdered African Americans for acts as harmless as speaking to a white woman. Consequently, some advocates believe that this distrust is a "'healthy cultural paranoia"' because it helps African Americans to survive.

Trust and rapport are essential components of mediation. These elements are material because they set the tone for interaction between the participants and the mediator during sessions. In some situations, it may be more difficult for the mediator to achieve much-needed trust and rapport with participants who experienced racism. Because of their distrust and suspicion, African American participants may "check[] out [the white mediator's] ... appearance, race, skin color, clothing, perceived social class, language, and a range of more subtle clues such as warmth, genuineness, sincerity, respect for the [participants], willingness to hear the [participants'] side, patronizing attitudes, condescension, judgments, and human connectedness."

When African American family members do not trust their facilitator, do not have good rapport with her or are uncomfortable with her, they may be passive or nonverbal during the session. Obviously, in that type of atmosphere, minimal progress on settling the family problems will be made. On the other hand, if the participants trust the mediator and feel that they are being heard, they will speak more freely and discuss any issues, even contentious issues. If necessary, mediators could utilize private caucuses to build trust among reluctant participants. Throughout the process, mediators should encourage all disputants to participate fully and reassure them that they will be treated fairly.

C. Prejudice

Another characteristic that will help the mediator to gain participants' confidence and trust is impartiality. The Model Standards of Conduct for Mediators mandates that " a mediator should guard against partiality or prejudice based on the parties' personal characteristics, background or performance at the mediation." Mediators must strive to uphold this standard.

Just as racial and ethnic prejudices arise during court proceedings, they may arise during mediation. Actually, the way in which this form of dispute resolution is conducted may breed racism. People who are biased against other groups of people tend to reveal their prejudices more openly in private or closed meetings, like mediation, than they would in more public fora like courtrooms. Moreover, it is easier for prejudice to creep into the mediation process because formal rules that minimize biased judicial decisions, such as rules of evidence, do not apply in mediation. Because these rules do not exist to constrain the mediator, the chance that bias will infiltrate the process is heightened.

Some may argue that a mediator's biases may not matter anyway because the disputants, not the mediator, make the decisions. Certainly, the participants make the final decisions, but the mediator facilitates the decisionmaking process. In some states, though, mediators work under a legislative mandate requiring diligent efforts to assist the parties to settle their disputes. It would be ill-advised for a mediator to reveal her bias against any participant because it will have detrimental affects on the participants' ability to resolve their problems. A mediator's bias and prejudice could cause the parties to halt their efforts to find solutions themselves and allow a judge to decide the outcome. Other parties who feel the mediator is prejudiced may walk out. If at any time during the mediation process, the mediator realizes that racial prejudice prevents her from being impartial, she must withdraw as the mediator for that matter.

D. Stereotypes

Unconscious and unfounded stereotypes may influence the mediator's perception of a disputant and that perception may be manifested in negative, nonverbal undertones. In turn, the mediator's behavior may trigger a negative reaction from the disputant. For a white mediator to break down racial barriers between herself and African American disputants, she must consciously control stereotyping and negative attitudes about African Americans. To accomplish that objective, mediators should weigh their own personal values and prevent those values from influencing the mediation process. "Stereotyping cultural groups indiscriminately prevents accounting for situational differences; that is, not all persons of a similar ethnic group exhibit the expected behavior in all situations, and much is dependent on the individual's degree of acculturation."

Otherwise, the mediator's stereotypical notions about African Americans could have a detrimental impact on the success of the mediation session. Participants may choose not to mediate with a facilitator who uses inappropriate or negative language that the participants find offensive. This could cause a complete breakdown in negotiations or result in an unfair settlement for one or both parties. Ultimately, mediation may be terminated because the mediator will be unable to help the family to dispose of its issues.

E. Language Barriers

To communicate with others, some African Americans use "Black English." Black English, sometimes called Ebonics or vernacular English, blends European and African languages. On occasion, approximately eighty percent of African Americans speak it.

Sometimes, the meanings of terms used in Black English differ from meanings commonly applied to words by whites. To illustrate, depending upon whether the word is stressed or unstressed, different meanings may be associated with the word "been." When it is unstressed, as in the sentence "He been married," it means that this man was married, but he is not married now. The meaning of the same sentence would change, however, if the word "been" was stressed. In that instance, "been" indicates that this man is married and that he has maintained that status for a very long time. Another example is "she be here" which means that "she occasionally is here, not, as is often understood by white listeners, that she is here right this moment."

Because so many African Americans use Black English, some may use it in mediation sessions, and it may be misinterpreted by mediators who do not understand it. Misunderstandings and inappropriate responses can lead to a communication gap, confusion and frustration between the mediator and the African American participant. A person may be viewed as "uncooperative, sullen, negative, nonverbal, or repressed on the basis of language expression alone." More dramatically, a mediator may decide to ignore an African American with whom the mediator is having difficulty communicating.

Another potential response is that the mediator may perceive African Americans who use Black English as incompetent or uneducated and disrespect them. The mediator may patronize or penalize mediation participants who use Black English. In turn, the participant may terminate the session or have difficulty in trusting the mediator. "Dialogue is silenced through power relations that delegitimize arguments and ideas that are not articulated in acceptable discourse or fashionable jargon .... Silence itself is also a powerful form of linguistic discrimination, especially when lack of response or long delays may repress or abort communication."

Mediators are charged with the arduous responsibility of encouraging two disputants, who have been unable to solve their own problems, to communicate and negotiate. They must help the parties to understand each other. This is done through reflection, acknowledgment and listening. Then mediators clarify the parties' issues and their positions on those issues. In order to do that, mediators must understand the parties' views and issues well enough to articulate them.

Mediators must engage all parties. Not only should a mediator respect this mode of communication, but also she should become generally familiar with this language. Alternatively, when mediators do not understand a statement, they may ask, respectfully, for clarification.

F. Respect

Respect strongly affects how African Americans react to non-African Americans. Often, white Americans disrespect African Americans. The following paragraphs offer examples of disrespect and ways in which mediators may show proper regard for African American participants.

One way in which a mediator can show respect is to refrain from referring to adult African Americans by their first names without permission. By becoming too familiar with an African American person, a mediator may be perceived as disrespectful. Mrs. Annie Mae Walker, Urcelle Brown's mother, is a stately, seventy-four year-old grandmother. Most African Americans honorably respect elderly members of their immediate family as well as elders in the community like Mrs. Walker.

Actually, this element of respect applies whenever the person addressed is older than the speaker. Many African Americans would consider it an insult if a younger person called them by their first name. By referring to older persons by their first names, the mediator innocently may be attempting to be friendly and casual. Without permission to be informal, however, African American participants may be offended, harbor unverbalized anger or view the mediator as disrespectful. For instance, the mediator may offend, and probably anger, Mrs. Walker by calling her "Annie Mae" during a session to resolve issues concerning Marcus and Chanika LeShaun.

To eliminate the possibility that this situation would arise, mediators should simply ask adult participants what they want to be called. Another solution would be the use of formal titles for everyone except children. In each session, the mediator should listen to and speak to all participants with respect. Disrespect will hinder the mediator's ability to help the participants negotiate a settlement. African Americans who sense the mediator's disrespect or unconnectedness may either refuse to participate in mediation or fail to cooperate fully.

Nonverbal communication can be just as disrespectful. In intercultural mediations, eye contact and body language can be misinterpreted. Therefore, mediators must be cognizant of their posture and other gestures that may signal disrespect or disinterest. At all times, the mediator should show interest in what the speakers are saying, listen to them and maintain eye contact with them. Mediators always should " c onvey to each family member in verbal and nonverbal mannerisms ... that the family member's input is valued and important."

"A feeling of respect is an extremely important ingredient.... [African American] families are very sensitive to a sense of being condescended to." Typically, African Americans respond to disrespect in one of two ways: (1) by withdrawing, or (2) by becoming disruptive. Similarly, African Americans who feel that a mediator disrespects them may withdraw or become disruptive. In either event, the mediation session will be unproductive and efforts to mediate the family's issues could be thwarted.

As far as many African Americans are concerned, whether they are respected is more crucial than the success of the mediation. Of similar significance, whether African Americans are satisfied with the resolution of their dispute will depend largely upon how the mediator treats them. " M any minority participants will press their claims most vigorously when they believe that what they do and say will make a difference, that the structure will respond, and that the outcome is predictable and related to effort and merit."

G. Collectivism

During dispute resolution, participants are categorized as either collectivists or individualists. Collectivists focus on in-groups and prefer conciliatory and amicable resolutions. Individualists concentrate more on pleasing themselves. Another distinguishing factor is that when collectivists communicate with others they are more attentive to the speaker's "verbal associations, gestures, body posture and facial muscles."

Normally, African Americans tend to be collectivists while white Americans tend to be individualists. Since African Americans are collectivists, they will be more attentive to the mediators' verbal and nonverbal mannerisms. Moreover, African Americans can be expected to be more comfortable with conciliatory proceedings like mediation.

To summarize, even without racial and cultural considerations, mediation of divorce and other family issues can spark an emotionally charged atmosphere. In any mediation of family disputes, ashtrays may be used as weapons and opposing parties may kick each other underneath the table. Add negative racial undertones and cultural bias to these sessions and the already charged atmosphere could become even more electrified and explosive. If mediators are mindful of the potential concerns discussed in this section, they can control counterproductive verbal and nonverbal behavior. Also, mediators can choose to respect individual African Americans as well as their cultural differences.

[1]. Dr. Wade W. Nobles, African Psychology: Towards Its Reclamation, Reascention and Revitalization, Address before the Center of Black Culture, West Virginia University, Morgantown, W. Va. (Oct. 17, 1995).

[2]. Associate Professor of Law, West Virginia University College of Law; Howard University School of Law, J.D., 1983; New York University School of Law, LL.M., 1996.