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The NJAPM Fall Conference features valuable information for all attendees about how to enhance their mediation practice with AI and expert advice to seek out when mediating.

Montclair, NJ, October 25, 2024 --(PR.com)-- The New Jersey Association of Professional Mediators (www.NJAPM.org) will hold its 31st Annual Conference on Friday, November 15, 2024, both in person at the Rutgers Labor Education Center in New Brunswick, NJ, and virtually. Registration and breakfast begin at 8:30 AM, and the program will run until 4:15 PM. All NJAPM members and the public are welcome to attend.

For over 30 years, NJAPM has brought high quality mediation programming and education to New Jersey residents, the judiciary and conflict resolution professionals. “NJAPM provides education and training to new mediators, advanced training to experienced mediators, and resources about mediation to the public and educational institutions throughout the state. Our mission is to help people resolve conflicts and disputes through mediation as the preferred method of conflict resolution, and to help relieve the backlog in New Jersey Courts,” Suzanne English, NJAPM President.

The program will feature two well-known attorneys, Dwight Golann who will discuss “Dealing with Loss in Mediation” and Eddie Nasser who will teach participants about seven ways to use AI in their mediation practices.

Given that AI is becoming more integrated into our lives, they will continue this discussion in the afternoon when a panel, led by Bob Lenrow, Esq., APM, will confront ethical issues with AI and Mediation.

The afternoon will feature two breakout sessions per specialty to address topics specific to both civil and divorce mediation:

The civil track includes a return to their featured speaker, when Dwight Golann will speak on “Insulting First Offers.” A second breakout discussion will feature the Right-to-Farm Mediation Program, presented by Agricultural Resource Specialist David Kimmel.

The divorce track will hold two panel discussions led by Bruce Matez, Esq., APM. The first, "Mediating the Marital Home" will include: Michael Klein, CDRE, CPRS; Amber Leach, CFP, CDFA; Peter Melchionne, CDLP; and Paul Sobol, Real Estate Appraiser. The second panel will be a demonstration of Facilitative and Evaluative Mediations. The panel, Gary Borger, Esq., Meghan Bradley, Esq., Hon. Marie Lihotz (Ret.), and Anthony Prinzo, CVA will demonstrate two types of mediation using the same set of facts.

The early registration fee is $175 for members and $270 for others until 10/31. From Nov. 1 until the day of the conference, registrations will be $200 for members and $295 for non-members. Full-time students with ID can register for just $85. Non-members who register can receive a discounted membership fee. The seminar qualifies for 6.9 NJ CPE/CLE credits including 1.5 ethics credits. Accredited Professional Mediators receive NJAPM CE hours. The seminar meets the AOC’s R. 1:40, annual requirement for roster mediators.

To register and/or join NJAPM, please visit www.njapm.org.

About NJAPM:
NJAPM is the only organization of professional mediators in New Jersey with over 200 members. The mission of NJAPM is to foster excellence in the field of mediation, promote and encourage mediation as the preferred method of dispute resolution, provide mediation education to the public, the government, and professionals, train and educate professional mediators, and protect the public through standards of conduct for mediators. It also provides accreditation for mediators with substantial mediation experience and advanced training. NJAPM members include attorneys, mental health professionals, accountants, businesspeople, and other professionals who have participated in varying levels of mediation training. For more information, to find a mediator, or to contact the NJAPM, go to their website at www.njapm.org or call 800-981-4800.

Contact

New Jersey Association of Professional Mediators
Barbara Silverstone, Esq.
201-410-7942
www.njapm.org

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• Legal & Law

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NJAPM officially joined the New Jersey Business and Industry Association in June 2023 as part of our ongoing efforts to increase the visibility of the Association, educate on the benefits of mediation, and provide members with increased access to networking opportunities. NJBIA focuses on the advancement of competitive excellence and financial success of their members, and provides advocacy, support, networking, and exclusive benefits throughout the 21 counties of New Jersey. This is one step in developing NJAPM’s reputation among various communities and industries as the leading organization in mediation training and representation. 

NJBIA began as a group of manufacturers sharing ideas about workplace safety. Today, its members represent every industry in New Jersey, including law firms, contractors, manufacturers, retail and wholesale businesses, and service providers of every kind. In addition to powerful advocacy, NJBIA also provides its members with practical information and a number of initiatives to help them succeed in growing their careers and practices. 

Our partnership with NJBIA provides access to various opportunities from special interest Councils such as the Non-Profit Council, to press and tv visibility which NJAPM hopes to utilize to increase the brand of NJAPM and educate the public on the benefits of mediation, membership, and various issues surrounding alternative dispute resolutions. 

Although NJAPM remains a neutral party on all issues outside of the scope of policies impacting mediators and the field of mediation, the Association is committed to our members and alliances that could benefit their practice, visibility, and opportunities to grow. It is our hope that this partnership will lead to increased opportunities to educate the New Jersey business community on the benefits of mediation and provide valuable services to our members.

Co-chairs, Anju D. Jessani and Katherine Newcomer, along with seminar committee members Michelle Cresti, Felicia Farber and Kate Monagle, selected the theme of “The Future is Now” to emphasize the idea that the time is ripe for mediation to be the conflict resolution method of choice in resolving disputes, and that mediators are adapting their processes to meet different client needs. Bruce Matez, NJAPM President, added that “the mission of the NJAPM is to promote mediation as the preferred method of dispute resolution throughout New Jersey, to provide basic education and training to new mediators, advanced training to experienced mediators, and to provide resources about mediation to the public and mediators. Our goal is to help people resolve conflicts and disputes more peacefully through mediation and ease the burden on our court system.”

In the morning, featured speaker Hesha Abrams, author of the bestselling book Holding the Calm: The Secret to Resolving Conflict and Defusing Tension, will share advanced and everyday techniques to use immediately to create bonding, defuse tension and close gaps to settle mediation cases.

In the afternoon, Jessica Taube, Director of Conflict Resolution and Anti-Bias Initiatives at the NJ State Bar Foundation, will discuss trauma informed strategies for conflict resolution.

Breakout sessions will address topics specific to civil and divorce mediation:

ABOUT NJAPM: NJAPM is the only organization of professional mediators in New Jersey with over 200 members. The mission of NJAPM is to foster excellence in the field of mediation, promote and encourage mediation as the preferred method of dispute resolution, provide mediation education to the public, the government, and professionals, train and educate professional mediators, and protect the public through standards of conduct for mediators. It also provides accreditation for mediators with substantial mediation experience and advanced training. NJAPM members include attorneys, mental health professionals, accountants, businesspeople, and other professionals who have participated in varying levels of mediation training. For more information, to find a mediator, or to contact the NJAPM, go to their website at www.njapm.org or call 800-981-4800.

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Now that the COVID-19 pandemic is fading, many mediators are going back to conducting “in-person” mediation.  When setting up a room for “in-person” mediation, it behooves the mediator to create a setting that is comfortable and conducive to helping the parties work out their differences.  What many mediators may not realize is that objects located around the room can have positive and negative aspects to them.  The placement of these items within the room can also change the outlook toward usefulness of having the item in the room.

Starting with the physical necessities we know that tables are the “go to” formation for formal mediation.  When dealing with the table the mediator will first need to decide what the size and placement should be.  Typically, since not many of us have access to triangular shaped tables, we have a choice of “round”, “square”, “oval”, or “rectangle” shaped tables.  Of course, if many people are involved and more than one table is to be used, other formations can be configured (U-shaped, classroom, etc.)  Round tables are useful because there is no “head” of the table and everyone is made to feel “equal”.  The detriment of a round table is that the parties have no one separating them from each other, unless each have counsel present and the attorneys sit side-by-side and the mediator sits on the other side of the participants.  Square tables can be likened to round tables with corners, but unless all four sides are occupied, there comes into existence a “head” of the table.  This “middle” ground will usually be occupied by the mediator, thereby separating the opposing parties from each other and causing them to “face” each other.  If a table is truly square, and the parties are comfortable sitting next to each other, the mediator might wish to encourage this camaraderie by avoiding being placed in the “middle”.  An elongated-oval table, depending on its size, can place the mediator on one side of the table and the parties on the other. A rectangular shaped table tends to be utilized more like a square table with three sides being occupied, or an oval table where two opposite sides get occupied with the mediator on one side and the parties on the other.  Some mediators may forego the table formation and opt for couches instead.  If this is done, be cognizant of the fact that participants like to refer to paperwork and some convenient hard surface should be supplied.

The selection of chairs are just as important as the choice of the shape of the table.  Chairs should be comfortable.  To show true impartiality, the mediator should try to give all parties the same make and model chair. The mediator when choosing the chairs should be cognizant of chairs that might vary in the height of the back, and whether or not a chair has arm rests.  If chairs are adjustable, it is highly suggested that all chairs be set to the same height before anyone enters the room.  Unless, all chairs have wheels, the chairs that have wheels should be removed from use, as wheeling chairs gives the occupant more freedom than those in chairs with legs that tend to restrict movement.

The next concern for the mediator is the light source within the room.  If the light source is a window, with bright sunlight flowing in, the participants with the window behind them may only appear in silhouette to those on the opposite side of the table causing an obstruction of facial expressions.  If it is night-time, the window might be reflective causing the participant facing the window to look at themselves as if they were looking into a mirror, which can become unsettling to some.  In addition, windows with a “view” can be distracting to the participant who can gaze outward.

The location of the doorway can also be of concern, if there appears to be a potential for an imbalance of power.  The person with the doorway furthest away may feel trapped, especially if the stronger participant is seated near the doorway.  Yet, some prefer to look at the doorway, so that they don’t feel someone is going to burst in at any minute (very common to members of law enforcement, or those ‘criminally’ inclined).  It may behoove the mediator to permit the party that might feel intimidated to choose their seat before the others enter the room, or it can be done surreptitiously by the mediator placing a personal object belonging to that participant at the selected seat (such as a coat or selected beverage.)

The mediation room should be kept at a comfortable and consistent temperature.  The room should be neat, clean and uncluttered and free of distractions.  All files, other than the one being worked on, should be properly secured.  Afterall, if other people’s files might be accessible to roaming eyes when the mediator leaves the room, how strongly will the participants adhere to the “Confidentiality Agreement” that they entered into when agreeing to participate in mediation sessions with you.

When the participants enter the mediation room they should be informed as to the location of the bathroom and where the key/code can be found.  They should also be made aware as to an alternate location where they can speak with their counsel in private.

Keep in mind that all accessories used in the staging of a room may be used to “comfort” the participants, but can also cause parties to be unsettled by them.  A prime example may be a wall clock.  While it may round-out the décor of the room, and can play an important part to keep track of scheduled appointments; a “frugal” participant may just see the time passing by and how it might be impacting their wallet.  If there is a calendar on the wall, avoid displaying days with big “Xs” over the days that passed.  Like a clock, a calendar shows the passage of time.  However, calendars that show the entire year, or a month at a glance, can be useful when discussing “visitation” schedules, or deadlines which are to be set. Supplying the participant with notepads can prove helpful to write reminders, but can be a distraction for those who doodle.  Tissues can be useful in tearful situations, but can also encourage a manipulating party to use it as a prop.

“Glory walls” filled with plaques, awards, news-clippings, books and photographs may be useful to bolster the mediator’s reputation and cause the parties to have more confidence in their selection of you as a mediator, it can also leave an impression on a participant that the mediator’s knowledge is superior to theirs and that they should capitulate to any suggestions made by the mediator.

This author is cognizant of the fact that many mediators “rent” conference rooms or temporary space from others, or even utilize whatever space might be provided to them at a courthouse.  In such scenarios, the mediator should carefully analyze the environment in the room and adjust to the situation as best they can.  This may simply be done by letting the participants know that you are operating for the day in “someone else’s space” and like them you will make due and try to make everyone as comfortable as possible.

As an alternative, many mediators that were forced to go virtual due to the pandemic, now choose to conduct their mediations virtually via Zoom, and other similar platforms.  By remaining virtual they avoid the complication and costs of setting up a physical room for the mediation.  Other than the possible issue of lighting, those issues discussed herein become non-issues.  The mediator simply has to accept the participant in the environment that they have placed themselves in.   In an upcoming article, I will discuss some of the features of virtual mediation and how to best utilize the platform so the participants can feel comfortable utilizing unfamiliar technology that may seem intimidating to them.

Glenn P. Milgraum, Esq., APM, has over 35 years of experience litigating Family and Civil Matters.  Mr. Milgraum is a rostered mediator in New York and New Jersey for Civil, Divorce and Family matters (including those involving “domestic abuse” and “inter-personal violence”).  He is an active member of NJAPM (New Jersey Association of Professional Mediators), has earned the designation of an “Accredited Professional Mediator” (APM), and is a Member of NJAPM’s Board of Directors.

BIAS

First and foremost, ADR professionals need to make sure that they do not personally or professionally harbor biases for or against the people appearing before them. Biases are tendencies, inclinations, or prejudices toward or against individuals or things.¹ They can be positive or negative and can result in prejudgments that lead to rash decisions or discriminatory practices.²

Identifying biases is extremely important for neutrals because they affect how mediators and arbitrators perceive others and make decisions about them. Mediators need to be objective when conducting pre-mediation conference calls, interacting with parties and counsel, and establishing a fair mediation process. Arbitrators need to be impartial when presiding over preliminary hearings, deciding discovery and dispositive motions, assigning weight to evidence, and assessing the credibility of witnesses at evidentiary hearings. Biases can arise from many factors such as cultural conditioning, media portrayals, life experiences, and upbringing.³ They are categorized as explicit—those that are known at a conscious level, or implicit—those that operate at a level below our conscious awareness.⁴ Explicit biases are easy to recognize because we are aware of and can control them, whereas implicit biases can be difficult to manage because we may not be consciously aware we have them.

Fortunately, there are various self-assessment tests that have been developed in order to help us determine whether we have any implicit or hidden biases. The most well-known is the Implicit Association Test (IAT) created by social psychologist Anthony Greenwald in 1995, which has become the global standard for assessing implicit attitudes, stereotypes, and self-concepts.⁵ TheIAT was designed to measures attitudes, beliefs and stereotypes that people have but of which they may be unaware. The test assesses and measures the strengths of automatic mental associations between different concepts, evaluations, and stereotypes utilizing timed responses.⁶

The results of the IAT are not accessible to anyone except the self-tester and can be very useful in determining whether we possess favorable or unfavorable implicit biases toward a wide variety of groups, categories, types of people, and characteristics. It is critical to learn about our own unconscious biases as neutrals because our underlying good and bad thoughts and feelings could impact our attitudes or behaviors and surface in unintended ways at mediation and arbitration proceedings. To maintain our objectivity and ensure a fair forum, we need to be continually diligent and steadfast in our efforts to uncover our own hidden biases that could lead to discriminatory or prejudicial behavior.    

What actions can be taken if the results of self-assessment tests show we hold deep-seated, unknown biases?

The good news is that research has shown that prejudice is fluid and changes in our implicit biases are possible.⁷ In one study, it was observed that even deeply ingrained implicit biases that might have been present for many years could be instantly updated by a single new piece of information that presented reasonable arguments for change.⁸ Another study revealed that, if certain deliberate steps are taken to combat implicit bias, the brain can be retrained.⁹ Specifically, once an individual becomes aware of their implicit bias, their concern about the consequences of their bias can help lead them to replace their biased response with non-prejudiced responses that are more in line with the values they consciously believe they hold.¹⁰

Some practical ways to reduce implicit bias and adopt new attitudes are as follows:

• Focus on seeing people as individuals rather than using stereotypes to define them; gather and keep photographs of successful and admirable people from all nationalities, races, religions, genders and sizes.
• Work on consciously changing your stereotypes, especially if you realize your response to a person might be rooted in biases or stereotypes.
• Adjust your perspective to try to see things from another’s point of view.
• Increase your exposure by spending time with people from different racial backgrounds and learn about their culture.
• Practice mindfulness to become more aware of your own thoughts and actions.¹¹

CULTURAL COMPETENCE

The United States is truly a melting pot with more immigrants than any other country in the world.¹²According to the 2020 Current Population Survey, immigrants and their U.S.-born children comprise 26% of the U.S. population.¹³ In New York City alone, nearly 40% of residents are foreign born¹⁴ and immigrants account for almost one quarter of the state’s total population.¹⁵ Nationally, there are approximately 45 million people living in the U.S. who were born in a foreign country, and there are over 350 languages spoken.¹⁶There are also over 300 different religions and denominations in this country along with a myriad of races, ethnicities, ages, gender identities, disabilities, and education and income levels.¹⁷

With such a diverse population, ADR practitioners need to attain a high level of cultural competency and awareness in order to ensure they are conducting the fairest, most equitable processes possible. In their mediations, arbitrations, and negotiations, neutrals must recognize that cultural issues can influence both the proceedings and the results. They cannot simply ignore the cultural differences at the table and continue as usual—as if those differences do not exist. They must instead strive to heighten their awareness of the unique needs and concerns of the people in the room, working to understand their individual characteristics and communication styles. Neutrals need to appreciate the cultural differences in how the participants convey and interpret information in order to conduct effective proceedings where they minimize misunderstandings and achieve the fairest outcomes.    

What Does it Mean to be Culturally Competent?

Becoming culturally competent means being able to interact effectively with people of different races, ethnicities, and socio-economic backgrounds from one’s own.¹⁸ It encompasses a willingness to learn about others’ cultural customs, practices, and worldviews. It includes being open-minded and positive toward other’s cultural differences, and making an effort to understand, accept, and respect them.

In recent times there has been a significant focus on diversity and inclusion in the areas of academia, government, business, and law. Diversity and inclusion—including people with a range of differing backgrounds, traits, and characteristics¹⁹—is interrelated with cultural competency in that they are both built on the principles of equity, fairness, and social justice. They also intersect on beliefs, policies, and practices. Being inclusive and culturally sensitive in the field of ADR means being aware of other cultural behaviors, acknowledging them, and reflecting that understanding back to the disputants. There are self-assessment tests for cultural competency, just as there are for implicit bias. One such online test is offered by the consulting firm of Rowland & Associates and allows you to rate your own cultural competency through answering ten short questions.²⁰Another by the Greater Vancouver Island Multicultural Society utilizes a Cultural Competency Self-Assessment Checklist designed to test your knowledge, skills, and awareness of yourself in your interactions with others.²¹ Questions include challenging your own stereotypes, recognizing social justice issues, and valuing diversity.

Once you have evaluated your individual strengths and weaknesses and identified personal areas of low cultural understanding, you will be able to work on building your cross-cultural skills. The ability to understand one's own and others' cognitive biases and to engage across cultural lines, adjusting one’s behaviors to others’cultural norms, is called cultural adaptability.²²As important as it is to embrace cultural diversity and to be open to learning new and different communication approaches, it is equally important to be able to adapt and make modifications along the way.

A fundamental skill in effective cross-cultural communication is being able to clearly and confidently express yourself to people from dissimilar backgrounds in a way that they understand. It does not matter how brilliant your message is if it is not received as intended. Other key skills include obtaining background knowledge on cultural norms, customs, and practices, making efforts to understand cultural differences, and demonstrating cultural sensitivity and awareness. Being able to communicate and interact with people across cultures has become an essential part of having a successful mediation or arbitration practice.    

Microaggressions and Coded Language

Neutrals should listen for and be careful not to use microaggressions or coded language. Microaggressions are indirect or subtle slights, indignities, or insults against members of a marginalized group, such as a racial or ethnic minority.²³They can be intentional or unintentional and can sometimes even be well-meaning, but they come across as derogatory or negative to the receiver.

Microaggressions can be verbal, non-verbal, facial, or environmental:²⁴

• Verbal microaggressions occur when words deliver the wrong message and the intent of what is said and the impact of what is heard are two different things. They can sound innocent and harmless but contain hidden messages. Examples of verbal microaggressions are: “You speak English very well,” “You don’t look like a lawyer,” and “Were you born here?”
• Types of non-verbal microaggressions are: Leaving someone out of a meeting; Not including them in an email chain; or Holding your purse tighter / Checking your wallet inyour back pocket.
• Facial micro-expressions occur when your words and tone are not aligned. For instance, your facial cues and emotions do not match the words you are saying or the message you are sending. This kind of facial misalignment can lead to trust and credibility issues.
• Examples of environmental microaggressions are controversial bumper stickers on your car, political signs on your lawn, or hanging the confederate flag on your house.

Coded language is the use of words that trigger racial stereotypes and other negative associations.²⁵ The specific words by themselves could be benign, but it is the context in which they are used that carries layers of meaning. Examples of coded language can be referring to “those people” or “the community” when discussing a socio-economically disadvantaged group or racial minority, such as using the term “thug” when referencing a black man. Use of microaggressions and coded language can have powerful detrimental consequences. They can alienate people and make them feel like they do not belong. It is critical for the neutral to make everyone feel comfortable and valued and provide a quality process. In mediations in particular, it is not enough for the mediator to tell people they are in a safe space; the mediator must make them feel that way.    

What Actions Should a Neutral Take if Microaggressions or Coded Language Surface in a Proceeding?

It is best to deal with any type of rude, insensitive, or nuanced language as soon as it surfaces and not let it fester. By ignoring or overlooking an indignity, the neutral could give the impression that s/he agrees with it or it was not important enough to address. Any perceived microaggression should be directly acknowledged, otherwise the danger is that a party might feel demeaned or discriminated against, and it will be hard for them to be open to a productive session. Ideally, if there may have been a microaggression, the neutral should speak to the parties separately in caucus to ascertain their thoughts, discuss sensitive issues, and talk through difficult situations. Through the use of questions, the neutral can obtain clarification of comments or actions and make the offending party aware of the impact on the other party. For example, the neutral could ask, “What did you mean when you said that? Do you think it was an appropriate remark? Can you see how that might have offended the other person? What led you to make that assumption?” As for the offended party, the neutral could get their suggestions on how they would like to get past the incident and move forward. By understanding their thoughts and preferences, the neutral will ensure they are invested in the process and use their input to neutralize the situation and proceed.

If coded language is suspected, such as where someone was alleged to be “difficult to deal with” or told they didn’t fit in,” clarifying questions can be utilized to elicit further information. A neutral could explore the reasons for these statements, asking whether they were intended to be offensive or how they were perceived. Exploratory questions can uncover whether the statements were evidence-based or whether they stemmed from personal feelings. For instance, the neutral could ask, “How was this person difficult? What makes someone a ‘good fit’? Were steps taken to include this person?”

If a mediator learns of cultural tensions or bias prior to the mediation session they can use pre-mediation meetings to address them. Once the mediation has started it can be helpful at the outset if a mediator aids the parties in finding shared interests or similarities in order to minimize the impact of bias and cultural differences. Recognizing the common elements in one another can help the participants to transcend the dispute and place them on the path toward resolution. Building rapport and making them feel comfortable with both you and each other will help them focus on problem-solving and negotiation, rather than underlying cultural concerns or biases.

It might also be beneficial to an aggrieved party who is highly emotional to have a support person present. A friend or family member can help them remain calm, centered, and in control so they can focus their attention on the matter at hand. If a situation is too much for the mediator to handle alone, the mediator could consider having a co-mediator who has a similar background or characteristic as the party, or who is familiar with the cultural issues at play. A primary goal of the mediator is to ensure a fair and just process so the parties feel they are mediating in a safe environment. Emotions are important, and if a party believes they were slighted, it will be hard for them to get past it and be productive.

As for arbitration, every aspect of the process can be affected if there are cultural issues involved or there is an uncomfortable undertone. By understanding the disputants’ communication styles and attitudes, an arbitrator can ensure s/he is being perceived as a role model for equitable treatment of all stakeholders and never allow demeaning behavior in the proceedings. An arbitrator’s knowledge and respect for the cultural differences of the parties and the way negotiation works in their cultures can give them insights into how the dispute ensued, where the breakdown of communication occurred, or what cultural practices may have contributed to their conflict.    

Nonverbal Communication

Neutrals need to acknowledge not only what disputants are saying, but their non-verbal behaviors and communication as well. Perhaps cross-cultural issues are causing a problem at a mediation session, evidenced by the way the participants are reacting to each other. Or perhaps a witness at an arbitration comes from a culture, like Japan, where neutral facial expressions are intended to avoid burdening others with emotions and are not signs of dishonesty.²⁶Just as neutrals use interactive dialogue and active listening to better understand parties and cultivate relationships with them, they also need to stay attuned to parties’ nonverbal communications. They need to understand participants’ facial expressions, posture, eye contact, gestures, and body movement, in a cultural context.

Without saying a word, participants can deliver clear messages to mediators and arbitrators through their actions and mannerisms. An eye roll, oblique glance, or narrow squint can be quite telling of someone’s disapproval. Folded arms, pursed lips, or a tight jaw can indicate anger. A furrowed brow, mouth pulled to one side, or tapping of fingers can be evidence of unease or agitation. By “reading the room,” neutrals can quickly gauge the disputants’ feelings to determine whether they should capitalize on positive reactions or intervene to rectify difficult situations.

Attention must also be paid to nonverbal communication differences between cultures. Very often, simple gestures viewed as positive in one culture may be seen as inappropriate in another. For instance, in the United States, giving someone a thumbs-up is a positive sign indicating approval, but in Greece, Russia, Iran, and parts of West Africa the gesture is offensive.²⁷Forming a circle with the forefinger and thumb conveys “okay” in the U.S. and the U.K., but is an indecent symbol in Spain, Turkey and Brazil.²⁸ And in some Asian and Middle Eastern cultures, pointing at people, using the left hand to shake instead of the right, making direct eye contact, touching, or expressing emotions can be considered impolite or inappropriate.²⁹    

High-context and Low-context Cultures

In general, neutrals should be aware of whether they are working with people from a high-context or a low-context culture. In high-context cultures, there is greater reliance on “reading between the lines” and nonverbal communication than in low-context cultures.³⁰ High-context cultures rely on personal relationships, social hierarchies, and cultural knowledge to convey meaning.³¹ Messages are subtle, nuanced, and layered, where the true intent is not communicated verbally but must be interpreted through shared cultural context. Examples of high-context cultures are India, China, Korea, Japan, Iran, Saudi Arabia, and Russia.³²

In low-context cultures, such as the United States, Canada, and Australia, communication is clear, explicit, and straight forward. Hierarchies are relaxed and strong emphasis is placed on the literal meaning of words rather than the context surrounding them. There is a focus on the facts and the accuracy of messages. Intent is conveyed in the words themselves rather than the interpretation of unspoken cues. Other examples of low-context cultures are the Netherlands, Germany, Denmark, Finland, and the United Kingdom.³³

Learning the distinctions between communication styles and patterns of high-context and low-context cultures can help neutrals reduce conflicts and misunderstandings in their dealings with disputants. Gaining an understanding of and appreciation for cultural diversity and the nuances of nonverbal communication are key to building trust and rapport and achieving effective communication amongst varying groups of people.    

Steps Toward Gaining Cultural Competency

Understanding the unique values, beliefs, and practices of other cultures cannot happen unless you are open to learning about them. The following are some suggestions to gain practical information on cultural norms and customs and to help identify and overcome biases and increase empathy, which can lead to transformative thinking and heighten cultural competency:

• Be curious and invest the time in learning about other people’s traditions and heritages;
• Research cultures you are unfamiliar with and contact friends and colleagues from those cultures;
• Reach out to members of peer groups and professional organizations;
• Take implicit bias, anti-oppression and anti-racism trainings;
• Travel and learn firsthand about other people’s customs and cultures;
• Spend time with individuals from different backgrounds and build relationships with them;
• Reflect upon the cross-cultural encounters and conversations you have had;
• Expand your sources for news and information;
• Join specialty bar association and affinity groups

Conclusion

Cultural competency for ADR practitioners means having the knowledge and ability to recognize the unique needs and communication styles of each individual disputant to make sure they are fairly treated. It means digging deeper, stepping outside our comfort zone and established way of thinking to broaden our cross-cultural awareness and skills.   Given the diverse world in which we live, cultural competency will continue to play an increasingly important role in the ADR profession.

As neutrals, even if we are unfamiliar with certain cultural norms, we can still be attentive, respectful, empathetic, and kindhearted toward others. Participants in mediation and arbitration will always appreciate a neutral who is positive, courteous, and impartial.    

Endnotes

1. https://www.psychologytoday.com/us/basics/bias
2. Id.
3. https://www.verywellmind.com/implicit-bias-overview-4178401
4. https://www.simplypsychology.org/implicit-bias.html
5. https://implicit.harvard.edu/implicit/takeatest.html
6. https://implicit.harvard.edu/implicit/aboutus.html
7. https://www.psychologytoday.com/us/blog/spontaneous-thoughts/201912/can-we-change-our-implicit-bias
8. Ibid.
9. https://www.apa.org/monitor/2011/10/biased-brain
10. Ibid.
11. See supra note 1
12. https://www.pewresearch.org/fact-tank/2020/08/20/key-findings-about-u-s-immigrants/
13. https://www.census.gov/programs-surveys/cps.html
14. https://www1.nyc.gov/assets/immigrants/downloads/pdf/moia_annual_report_2018_final.pdf
15. https://www.americanimmigrationcouncil.org/research/immigrants-in-new-york
16. https://www.census.gov/newsroom/press-releases/2015/cb15-185.html
17. https://undergod.procon.org/religions-and-denominations-in-the-us/
18. https://www.apa.org/monitor/2015/03/cultural-competence
19. https://dictionary.cambridge.org/us/dictionary/english/diversity
20. https://www.international-excellence.com/blog-1/318-test-your-cultural-competence-2
21. http://rapworkers.com/wp-content/uploads/2017/08/cultural-competence-selfassessment-checklist-1.pdf
22. https://www.igi-global.com/dictionary/of-chalk-and-chai/54050
23. https://www.merriam-webster.com/dictionary/microaggression
24. https://diversity.nih.gov/sociocultural-factors/microaggressions
25. https://neaedjustice.org/social-justice-issues/racial-justice/coded-language/
26. https://online.pointpark.edu/business/cultural-differences-in-nonverbal-communication/
27. https://www.businessinsider.com/hand-gestures-offensive-different-countries-2018-6
28. Id.
29. Id.
30. https://www.techtello.com/high-context-culture-vs-low-context-culture/
31. Id.
32. Id.
33. Id.

By Bruce P. Matez, Esq. APM

Most mediators conduct their mediations in one of four styles: Facilitative, Evaluative or Directive, Transformational, or Transactional. It is important to know what style of mediation you are seeking to help resolve a dispute.

FACILITATIVE MEDIATION:  In facilitative mediation, which is generally considered the traditional type of mediation, the mediator facilitates discussions between the disputing parties. The mediator encourages disputants to reach their own voluntary solution by exploring each other’s goals and interests rather than making recommendations or imposing a decision on them. In facilitative mediation, mediators tend to not vocalize their own views regarding the conflict and do not give their opinions as to right or wrong but will make suggestions for resolution. Often in facilitative mediation, the law is secondary to the needs, wants, goals, and interests of the disputing parties. The mediator helps them fashion a result that works for them as opposed to what the law might say or what others do.

EVALUATIVE/DIRECTIVE MEDIATION:  In direct contrast to facilitative mediation, an evaluative/directive mediator will make recommendations, suggestions, and express his/her opinion about the strength and weaknesses of each party’s position based on the law and the facts. Instead of focusing primarily on the underlying goals and interests of the parties, evaluative mediators direct settlement by evaluating openly to the parties the legal merits of the dispute and expressing his/her opinions.   

TRANSFORMATIVE MEDIATION: In transformative mediation, the mediator focuses  on empowering disputants to resolve their conflict while encouraging them to recognize each other’s needs, goals, and interests, similarly to Facilitative Mediation. The process aims to transform the parties  relationship by helping them develop and acquire skills they need to make constructive change and be able to communicate and cooperate with one another more effectively. This is most helpful to parents involved in custody and parenting disputes, employment disputes, and other disputes wherein the parties need to maintain some type of ongoing relationship. The mediator is less concerned with whether participants reach an agreement, and more focused on helping them transform their relationship.

TRANSACTIONAL MEDIATION: The only goal of Transactional Mediation is to get to an agreement using a more traditional negotiation style and using the mediator more as a settlement director. This often involves “shuttle” diplomacy, wherein the mediator meets with each party privately and goes back and forth  with each side. Often, transactional mediation requires some aspects of facilitation and evaluation.

These different types of mediation are not mutually exclusive; a mediator can be solely use one style exclusively or may be comfortable conducting two or more different types/styles of mediation. Some identify this as ADAPTIVE MEDIATION. While an adaptive mediator can mediate using more than one style, in an adaptive mediation the mediator may employ more than one of these four types in the same mediation. For example, a facilitative mediator may be asked to become evaluative or directive during the mediation or the mediation may become transactional. Some mediators are able to shift their style during the mediation to fit the needs and desires of the participants.  

Before hiring a mediator, take some time to understand the different styles/types of mediation and make an informed decision as to the type of mediator you are seeking.

10 BASIC PRINCIPLES OF CULTURAL COMPETENCY (BPCC):

A STARTING POINT FOR NEW MEDIATORS  

By Lawrence R. Jones and Joni Jones, RN-BC*

     With emerging social awareness of the major benefits of understanding and working with persons from diverse backgrounds, there is a heightened interest in the concept of cultural competency in an inclusive society. Adding cultural competency and sensitivity to mediation can help mediators in both family and civil proceedings.

     Those beginning the  journey toward  cultural competency may at first feel overwhelmed by the absence of any specific roadmap, as there is no single, universal, “official” textbook on the subject. Some information is complex, and different resources, studies and articles may at times seem ambiguous or contradictory.

     For new mediators who have little  prior familiarity with the concept of cultural competency, but who  seek to improve their ability to help people from different backgrounds, the following  principles are designed to serve as a possible starting point for a lifetime of ongoing education and study. These   principles are not intended to cover every aspect of cultural competency, but rather to provide a beginning  direction for those wanting to learn more about this topic.

10 BASIC PRINCIPLES OF CULTURAL COMPETENCY (BPCC)

 1) “Culture” is not limited to one’s nation of origin. Rather, culture may include other relevant categories as well, including but not limited to ethnicity, race, religion, gender, age, physical or developmental challenges,  sexual orientation, and other groups with which a person may personally identify or have shared similarities.

       This concept addresses recognition of a broad definition of “culture” beyond more traditionally narrow terms.

    2) Cultures may have many “sub-cultures”, and some people may be part of different or overlapping sub-cultures, with various levels of self-identification;  cultures are heterogeneous, as individual members each have their own thoughts, viewpoints, life experiences and responses which define their uniqueness.    

This point emphasizes that when a person identifies with a “culture” or “sub-culture”, the degree of adherence to traditional customs and value systems may vary from person to person.  As every person is a unique individual, a mediator cannot presume that any person has particular characteristics, beliefs, or customs merely because one or more other members from that person’s culture  have such traits. Any  such presumptions can lead to overgeneralization and stereotyping.  If a mediator finds that a person identifies with a particular culture or sub-culture, this is only a starting point in the process of seeking to understand the person as an individual.  While a culturally competent mediator may research and learn about a culture, one must never pre-suppose a person’s views beforehand, but rather  may seek further information, input and clarification as applicable.   

   3) “Cultural Competency” does not require a mediator to be an “expert” about multiple cultures.  Rather, a mediator remains open to learning about relevant issues of cultural importance to each person as presented, which may change over time. 

     The level of a person’s self-identification with some cultural norms and traditions may change multiple times based upon life experience.  For example, one’s personal adherence to the customs and rituals of a particular religion (or lifestyle, such as veganism) may change for any number of personal reasons.  As one’s ongoing relationship with aspects of a culture may evolve in one direction or another, a mediator should be aware of the potential for such variations on a case-by-case basis

   4) A culturally competent mediator listens, and appreciates that individuals from different cultures may have viewpoints different from that of the mediator, and no such viewpoints should be disregarded or devalued as a result.

     A mediator cannot know everything. There may be multiple ways of looking at an issue.  A culturally competent mediator knows the importance of effective listening, and accepts and appreciates  that people from varying backgrounds can have differences in viewpoints which are all valuable.

     5)  A culturally competent mediator remains aware of the potential for   implicit and unconscious prejudice and biases, which can exist without one’s knowledge or intent and may negatively impact the mediation process; therefore,  cultural competency is supported by  an ongoing willingness and effort of the mediator to  self-evaluate for open-mindedness to persons and ideas from all backgrounds.

     A mediator’s willingness to engage in ongoing self-evaluation is key.  Such willingness helps protect against unconscious pre-existing beliefs potentially impacting the ability of the mediator to appreciate the merits of other people’s ideas and ways of addressing and potentially resolving  issues. 

       6) A culturally competent mediator is cautious and sensitive about the terms used in addressing or describing members of any particular class.

      There can be outdated or conflicting information from different sources as to how to appropriately address persons who may identify with a particular culture. Different persons may prefer different terminology. An example is when parents of a child diagnosed with Autism Spectrum Disorder (ASD) may prefer the term “child with autism” over “autistic child” or “child with ASD”.  Rather than assuming preferences, and when relevant to the discussion, a mediator may ask the participant(s) their preferred terminology.  Acknowledging and respecting personal preference can help  support cultural awareness and sensitivity

      7)  If a mediator learns that he/she/they   inadvertently offended a person through words, gestures or actions, it is generally helpful and constructive to acknowledge the situation and consciously avoid   repetition in the future.

        Life teaches us that every person – without exception -- may say or do something which personally offends somebody else.   Therefore, it is possible that a mediator may unknowingly use words or engage in actions which may culturally offend a party.  The principle  is that the mediator accepts responsibility when learning that words, gestures or actions have unintentionally offended someone. Maintaining trust, rapport and respect is a very valuable concept in the mediation process.

       8)  There is no single “training program” that suddenly transforms a new or experienced mediator into a culturally competent professional.  

       This provision emphasizes that while there may be numerous continuing education and professional development courses and seminars on “cultural competency”, the topic   involves far more than rote memorization of points and principles that might be covered in any particular class or course on the subject.   Cultural competency is an ever-evolving and ongoing process, and , ongoing  involves a long-term commitment to constant education, open-mindedness and willingness to learn when working with persons from diverse backgrounds

    9) When mediating a case involving persons of different cultures, a primary goal of a culturally competent mediator is not to determine who is “right” or “wrong” but rather to assess for ways to respectfully construct a bridge of common interests and agreements between the persons involved.

       When mediating a case between persons of different cultures, there may sometimes be challenges in reaching compromises between minds that   view the same issues very differently. For this reason, a culturally competent mediator appreciates that with compassion and reason, it is often very possible to help people from completely different cultures find common ground and reach mutually acceptable resolutions in the mediation process.    

10) “Diversity/Inclusion” and “Cultural Competency” are related but different concepts.

       The concept of “cultural competency” differs from the concept of “diversity and inclusion.”  While “diversity and inclusion” supports the concept of persons from multiple and diverse cultures and backgrounds working together, “cultural competency” focuses on the actual ability and willingness of persons from all backgrounds to understand and learn from each other with open minds.   For example, a business  seeking to practice diversity and inclusion may hire multiple qualified persons from different cultures.  Yet, if that same business makes little or no legitimate effort to share ideas and actually understand and learn from the diverse persons hired, then the business   may have staff  diversity in name ,  but  a  deficiency in cultural competency.  Reciprocally, if another business has an open-mindedness to receiving  and considering   different ideas and approaches from persons of  different cultures,  but little or no actual diversity and inclusion amongst employees, then   the company may never realize the full benefit of diverse teammates working together. By pairing and utilizing both  diversity/inclusion and cultural competency together at the same time, the resulting synergy  can significantly strengthen  a group or organization’s efforts in constructively  achieving a common goal.  

* Lawrence R. Jones  is a former   New Jersey Superior Court Judge, a professor at Monmouth University and Montclair University, and is the chair of the NJAPM’s committee on diversity/inclusion and cultural competency in mediation. 

Joni Jones is a mental health professional and a member of the New Jersey Association of Professional Mediators’ Committee on Diversity and Inclusion. They are the co-authors of the Basic Principles of Cultural Competency (“BPCC”)  for family and civil mediators, which was presented at the New Jersey Association of Professional Mediators’ first annual conference on mediation and cultural competency in February, 2021. 

Submitted by:  Diana M. Longo, CDFA®

Do you admire others who have the ability to write with ease? We have peers within NJAPM that on top of their day job, also write poetry and compose novels. I have many talents, but I am not blessed with this capability. Writing becomes a chore as I debate the use of prepositions, switch pronouns and research extra synonyms.

In short, I hate writing blogs. Time is inevitably limited as I move on to more pressing tasks. Yet, I recognize my need to increase the visibility of my practice so that I may increase my financial and professional success.

Therefore, I offer these three restorative suggestions for those of us who may be challenged in composition.

#1. “YOU NEED A CUP OF COFFEE BEFORE YOU START TO DATE”

Experience is wonderful. However, I have so many ideas running through my brain that I soon become overpowered by the sheer volume of how much I want to include. The purpose of a blog (or other professional-type article) is to create interest. Please edit, limit excessive statements, and become efficient with your networking messages. To help me stay on track, I remember this old adage: “You need a cup of coffee before you start to date.”

#2. TIME MANAGEMENT

I have several tools dealing with time management, setting goals and planning my week. It is amazing how much more I can achieve when I review them during the week and prioritize my focus.

#3. CREATE A SIMPLE STRUCTURE

Begin your blog by creating a simple Outline or Template to prioritize your ideas. Subtitles, bullet points and short paragraphs are formatting tricks to increase reader attention and improve your online search results. Here is a sample outline/template that I use for writing professional articles (blogs). I find that it saves time and clarifies my message.

TITLE: ________________________________

THEME/PURPOSE OF YOUR ARTICLE: __________________________________ __________________________________________________________

Supporting Statement #1

Sub point #1

Sub point #2

Sub point #3

Supporting Statement #2

Sub point #1

Sub point #2

Sub point #3

Supporting Statement #3

Sub point #1

Sub point #2

Sub point #3

MY CONCLUSION:

I may never become a Dickenson or Hemmingway. However, I remain proud of my professional accomplishments. I am particularly grateful to NJAPM for its assistance and to its individual members who remain gracious with their support and continuing information.

We all provide a vital service to the community. Please help us “get the word out!” by contributing to our Blog Library. Please contact me if you would like assistance with your writing. I will be happy to help you create your own firm’s “Cup of Coffee!”

Author: Diana M. Longo, CDFA®

Innovative Divorce Services, LLC

Parsippany, NJ