The Administrative Tribunal of ADB

20 Years of Operation

• Publisher: Asian Development Bank
• Year: 2012
• ISBN:
  9789290927457
• Edition: 1
• Topic: Law
• Subtopic: Arbitration, Negotiation & Mediation in Law
• Index: Law

This publication is a compilation of the conference proceedings from the 20th anniversary program of the Asian Development Bank Administrative Tribunal held on 5 September 2011 at the Asian Development Bank Headquarters in Manila. It is authored by esteemed international experts in mediation and labor arbitration. It also covers the Tribunal's establishment and accomplishments since its inception in 1991.

Resolving Disputes in Asia: What Has Culture Got to Do with It?

Dale Bagshaw, PhD

Abstract

This paper analyses the influence of culture and discourse on the way people view and handle conflict, provides examples of diverse religious and customary dispute resolution practices in Asia and a critique of their limitations, and suggests some implications for dispute resolution practitioners working in the region. Various forms of mediation, conciliation, and arbitration have existed for at least two millennia in various countries and cultural groups in Asia. However, globalisation and the colonial legacy have privileged Western ways of knowing and the increasingly dominant, Westernised approaches to dispute resolution have tended to ignore, marginalise, or subordinate local or customary knowledge and practices. The author argues that, for dispute resolution practices to be culturally appropriate, third parties should understand and value the way Asian peoples have historically conceived and responded to conflict and work towards co-constructing approaches to dispute resolution that privilege local ways of thinking and doing in relation to disputes. Potentially, a blend of Western and Eastern approaches can address the limitations of customary practices imposed by human rights conventions and legal frameworks and include the useful and positive aspects of each approach. However this will require third parties to be culturally fluent, self-reflexive, and mindfully aware of the influence of their own culture on their perceptions and practices.

Introduction

All societies have dominant mechanisms to manage conflicts, and to bring to account those whose disputes mar social cohesion and the structure of the group or society as a whole. In some generic form, for example, various forms of mediation, conciliation, and arbitration have existed for at least two millennia in Eastern nations, for example in the People’s Republic of China, Japan, Republic of Korea, and Sri Lanka under the influence of Confucianism and in the teachings of the Holy Qur’an, which are influential in other Asian countries such as Malaysia, Indonesia, and the Southern Philippines.

This paper focuses on culture, religion and customary dispute resolution practices, their influence on the way people view and handle conflict and disputes in Asia, and implications for dispute resolution practitioners working in Asia. Effective dispute resolution processes are not only needed for business and cross-border disputes between trading partners and investors but also for land and family disputes, which also often underlie business disputes. Existing forms of recently introduced formal Western dispute resolution procedures used in Asia are ill-equipped to deal with some situations and a lack of knowledge of customary norms and processes can discourage investors and traders, obstruct law reform, and disempower traditional dispute resolution practitioners.

In this paper, I give examples of traditional and religious approaches to conflicts and disputes in various cultures and countries in Asia. However, it is important to recognise that the task of learning about the dispute resolution traditions of groups other than your own is never-ending and if done well would occupy legions of specialist scholars for many years. Even then, the diversity between individuals, families, organizations, groups, or communities within each culture or country, and the changes that occur over time with globalisation, will provide exceptions and contradictions to any generalizations that can be made.

As an Australian female “Westerner” with a keen interest in this topic I write as a humble learner. As a university academic for 36 years I taught and supervised numerous postgraduate scholars from Asia, and as a mediation consultant and trainer I have conducted mediation workshops in nine different countries,¹ including in Malaysia, the Philippines, and Fiji, which has made me mindful of the need for Western trainers and mediators working in the region to be culturally fluent. As a past president and vice president of the World Mediation Forum, the ongoing president of the Asia Pacific Mediation Forum, and a keen traveler, I have been fortunate to have had the opportunity to learn about different dispute resolution traditions and customs in the region.² However, the more I learn about the subtle and complex differences between the diverse dispute resolution practices of groups within Asia, the more humble I feel when approaching this topic.

Dominant Ways of Knowing About and Intervening in Conflicts

Epistemology is the philosophical study of the nature, foundation, sources, and limits of knowledge. Epistemology is concerned with who can be a knower, what constitutes truth, and how truth is verified. The French philosopher Michel Foucault examined who controls knowledge and what knowledge counts in various institutions. He argued that all knowledge is socially constructed and is situated in a particular cultural and historical context. He also emphasised the close link between knowledge and power and argued that language constructs our understandings of the world and our place in it. Language has political implications and constructs our particular views of conflict and how it should be resolved. In this sense I am talking about the power of language as discourse—dominant ways of talking about and perceiving something (for example, conflict or mediation) in a particular cultural group or context at a particular period in time.

Dominant discourses in an organization, community, and/or society determine what counts as knowledge or “truth” and what does not. Foucault highlighted that, at any given time in history and in any given context, certain knowledge or “truths” are privileged and others are ignored, subordinated, or marginalised, and those who control the dominant discourses (“colonisers,” “professionals,” “experts,” politicians, religious leaders, and so forth) determine what is viewed as “normal” and “abnormal.”

The colonial legacy in many countries in the region has tended to ignore, marginalise, or subordinate indigenous or customary knowledge and has privileged Western ways of knowing. This has led to a process that is sometimes called “othering.” Linnekin points out that in Hawaii, New Zealand, and Australia, for example, indigenous people have been “transformed into subordinated minorities of the Fourth World. In each of these cases the colonial society’s categorisation and treatment has been founded on Western biological criteria and openly racist assumptions.” Many indigenous groups have struggled to assert their own cultural identities where there have been dominant colonial societies in the region.

Culture and Conflict

Contemporary writers define culture as:

the “whole way of life” of a social group as it is structured by representation and by power… a network of representations—texts, images, talk, codes of behaviour, and the narrative structures organising these—which shapes every aspect of social life.

LeBaron points out that conflict is always relational and social and argues that culture is integral to understanding conflict. She defines culture as:

[t]he sets of invisible rules that whisper prompts and frown at us in our mind’s eye when we contemplate deviating from norms. They are sets of messages that swirl around us in overlapping circles, often outside our conscious awareness.

All cultures are dynamic or in flux and each of us has multiple identities (based on age, nationality, geographic setting, gender, sexuality, race, ethnicity, socioeconomic class, profession, job role, ability, language, religion, and so forth) and may respond to conflict differently, drawing on one or a blend of these, depending on the context. LeBaron also states, however, that while culture is “multi-leveled and multilayered, there are ways to understand its patterns that can help us decode its symbols.” I agree with her premise that “practice and experience, together with learning, awareness, and reflection enhance cultural fluency.”

Okun et al. identified key elements of culture about which scholars agree:

• Culture includes all aspects of human life by which groups impose order and meaning on their life experiences.

• It involves communication between all the senses in patterns that are recognisable by members of a given culture.

• The way that language is used in a culture shapes meaning and experience which in turn shapes the language.

• The most effective method for understanding one’s own culture is to compare it to other cultures.

Members of a specific culture experience their culture as “the way things are and the way things should be,” a phenomenon called ethnocentrism, our natural tendency to assume that everybody else views and understands the world in the same way that we do, which often leads to misunderstandings and conflict.

As previously explained, our cultural identity influences our approach to conflict and negotiation and this identity is based on a commonality of experience, perspectives, language, traditions, and environments. Language is central to the construction, negotiation, and communication of meaning and thought and enables us to categorise, label, and make sense of a situation in similar or different ways. Whilst recognising the dangers of categorisation, Table 1 illustrates how in communication Westerners tend to focus more on “things and objects, rather than on processes and relationships.” They tend to use categories as a shorthand way of understanding and communicating about events and experiences. On the other hand, people from non-Western cultures tend to use approaches to communication that may be either more abstract or more particular. For example, people from communitarian cultures will tend to pay more attention to the context and non-verbal communication and those from individualistic cultures will focus more on words and their meaning. These differences should be considered by third parties involved in cross-cultural communications.

Table 1 Factors Influencing Collaborative Dialogue between People from Individualistic (Western) and Collectivist (Eastern) Cultures

Elements of Collaborative Dialogue	Individualist Cultures	Collectivist Cultures
Reliance on context	Are less aware of context and nonverbal cues	Are more aware of context and nonverbal cues
Form and style of communication	Place more reliance on direct and verbal forms of communication	Place more reliance on indirect and nonverbal forms of communication
Level of assertiveness	Tend to be more assertive and selfaffirming	Tend to be more submissive and selfeffacing
Type of reasoning	Rely more on inductive reasoning	Rely more on deductive reasoning
Focus	Focus more on the needs, interests, goals, and rights of individuals	Focus more on the needs, interests, and goals of the collective and on individuals’ responsibilities to the collective
Content of the communication	Rely more on gathering facts, establishing goals, and asking direct, specific questions	Rely more on general narratives, stories, metaphors, proverbs, analogies, and understatements to communicate meaning
Turn-taking and speed of communication	Engage in overlap talking and faster turn-taking verbal behaviour	Use longer turn-taking pauses and reflective silences
Process versus outcome orientation	Focus more on content, action plans, and outcomes than process	Focus more on process, identity, and relational meanings that underlie content messages and less on outcomes
Leadership	Tend to value horizontal power (low power-distance) and shared, egalitarian styles of leadership	Tend to value vertical power (high power-distance) and hierarchical, authoritarian styles of leadership

Source: Adapted from Ting-Toomey, 1999.

However, at this point I want to remind readers that culture is not static; it is fluid and changing and people can be influenced by many different cultures. Also, whilst categorising people according to their cultural background can be useful, putting people and cultures into binary categories (e.g., collectivist/individualistic) can detract from our ability to see shared values and behaviours across cultures and unique, individual aspects within a culture. Individuals belong to a number of categories, as previously explained, and perform in a number of roles (such as manager, colleague, employee, husband, father, or friend) and one category or role may be more relevant in some situations than in others.

Bauman has also cautioned against using analyses of culture that are based on binary concepts. She notes, for example, that there is a dialectical relationship between individual Aboriginal autonomy and group relatedness, such that whilst Aboriginal individuals may be heard to say, “I am boss for myself,” autonomy can only be expressed through relatedness.

In their research, Tjosvold, Leung, and Johnson also found that, while some social scientists are skeptical that Western theory based on individualistic notions can be applied in collectivist cultures, their findings challenged the universalistic aspirations of Deutsch’s theory of co-operation and competition. In cooperative contexts their Chinese participants were able to appreciate constructive controversy, were interested in learning more about opposing views, and tended to include them in decisions. To quote: “Our research challenges Western stereotypes and indicates that leaders in the the [People’s Republic of] China must develop an open, mutual relationship with employees. Authority cannot be assumed; leaders must earn it by demonstrating commitment to employees an...