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Cross Cultural Mediation

Cross Cultural Mediation

When tensions are high one’s capacity to listen and be in charge of oneself is severely impaired. If it’s the job of the judge to manage tension in the courtroom then it’s the job of the mediator to facilitate a meeting of minds. Find out how you do this with Jo Kalowski.

Joanna Kalowski is an experienced mediator and runs a management consultancy which is involved in judicial education focussing on areas such as managing courtroom tension, communicating with unrepresented litigants, and cross-cultural communication. In this interview, Joanna discusses the work that she does. Joanna focusses on how culture and cultural differences show up in mediation, the challenges they create and how we can manage them.

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Full Transcript

Aled: Hi everyone. My name is Aled Davies, founder of MediatorAcademy.com, home of the passionate and ambitious mediator. And a place where mediators, young and old, I’m not talking about age I’m just talking about experience, come and listen to very experienced mediators tell a story about how they’ve built their mediation practice or shaped their career. How they’ve handled particular dilemmas and challenges that they’ve encountered along their journey. And what they’ve done to help them become effective and successful. I find these interviews inspiring. I learn so much from them and I hope you will too so that you can go away out into the big world and build your own little success story and come back here and tell your story to my audience.

Now today’s guest has been working with groups as a mediator for over 20 years in highly sensitive, interracial, and political settings all over the world. In 2001 she became chairman or chairperson of LEADR, Australia’s largest non-for profit dispute resolution organization. And in 2006 became a visiting Fellow at LEADR, Fellow? Fella? I don’t know about that. She’s a member of the Administrative Appeals Tribunal for ten years and later a member of the National Native Title Tribunal where she mediated land claims by Aboriginal people to their traditional lands and waters.

She now runs a management consultancy where over the past five years much of her work has been in the areas of judicial education, working with courts and tribunals across Australia in areas such as managing tension in the courtroom, communicating with unrepresented litigants, and cross-cultural communication.

Now after attending a three-day workshop on cross-cultural mediation run by Jo last summer, I really understood just how passionate she is about mediation and also making sense of how cultural differences play a part in many of the conflicts we all experience. I also learned a lot about myself in ways that were unexpected, but that’s another story. In this interview I really want to understand more about how culture and cultural differences show up in a mediation. What challenges they present us as mediators. And how we can manage them. And I’m sure we’ll cover some ground with my guest. Joanna Kalowski, welcome.

Jo: Thank you very much, Aled. I’m not surprised that your interview was about stories.

Aled: Well, I mean, we did the pre-interview and I mentioned to you that the idea of managing tension in the courtroom, I think to films with Tom Cruise and this courtroom dramas, I imagine the tension in a courtroom, I mean how do you go about managing tension in the courtroom? What’s all that about?

Jo: Tension in the courtroom, at some level, will always be present. And if it’s present at a level that prevents the person for whom this courtroom has been set up, whether it’s the accused or the applicant, however you call them. Whether it’s a criminal or a civil matter, if that tension is such that that person can’t put their best communicative foot forward, then it is a miscarriage of justice. Then justice isn’t only a failure, in terms of being seen as done, but also in terms of being done. It’s very possible that people won’t answer questions in ways that they could were the tension a little less.

Aled: Okay.

Jo: So the stranger the situation to that person, the less likely they are to be able to respond in ways that will allow the Judge and the jury in many instances, to make the decision that they must make [inaudible 00:04:39].

Aled: I mean when you say that, we had a chat a few moments ago and now we’ve started recording this interview, I have to say I’m feeling a little bit nervous, right? So now, I’m imagining being in a courtroom where the stakes are high. I can’t imagine how I’d be feeling. How anxious I’d be feeling. Where do you start with that?

Jo: Well, that’s a fantastic starting point, Aled. I mean you’ve got it in one. The higher the anxiety, the lower the communicative ability. So one of the things that I will say to people, and you possibly remember this from the workshop, is that if I were going to draw on a blackboard a model of the 10,000 word lecture on communication, it would have one arrow going up and one going down. And the arrow going up would end in the word comfort. And the arrow going down would end in the word threat. So the ideal of all communication is to increase comfort and lower threat.

So it isn’t that the judge’s role is to make the person feel as if they’re lying in a hammock in Hawaii and just having a chat with a mate, not at all, but they need to make sure that the sense of threat is lessened so that the person can actually respond in ways that are fair. So that I can tell you, as you earlier said, I can tell you my story.

Did you or did you not do such and such on the 13th of August? If all I’m allowed to do is answer yes or no to that question, I’ve got no where to go. But if I’m asked, why was it that you failed to report to police as planned? I need to be able to say, my wife went into labor and I don’t speak English and I have to go and call the neighbor and I completely forgot. But if I can’t say any of those things, and there isn’t adequate provision for interpreters, that might be one cause of a miscarriage of justice. That’s a very obvious one.

Most of them are much less obvious because where in Australia, certainly, people’s language is the cultural barrier. We almost, invariably manage it by having a properly accredited interpreter present. But it’s where the issues are beyond language, where it’s far beyond language, where it’s — just hang on one second, John, John you can’t speak in here — sorry.

Aled: Okay.

Jo: When it’s not language, when it’s about how the person is making themselves understood, what they’re saying and not saying, that they need to understand the cultural significance of what it is that they may be holding back. Because for us a courtroom, however much we find it anxiety provoking, is not an unfamiliar setting. Someone for whom everything to do with courts and police is a threat because they’ve been corrupt in the country of origin. Or they’ve been violent in the country of origin. That person will not do their best in that setting.

And the Judge may have to say, Mr. So and So, Mr. Davis, can I encourage you, you look as if you’re not answering that question. Can I encourage you to answer that question to the best of your ability? Say whatever it is you need to say. So just saying that is enough to have the person feel that the Judge is there at least listening to them. This is not that it’s a break from you’re old situation in which you as a poor person or a person of no influence could place yourself in jeopardy by answering such a question.

Aled: Yeah.

Jo: Base everything on the idea of a fear of [equal] and on the merits judicial system, as you do in the UK. I mean our system is your system. But if people don’t perceive that and they’re cultural, if you like, their cultural head is elsewhere then they’ll hold back on saying the very thing that could be of use to them. The very thing that could make their failure to report or failure to do something understandable.

Aled: I find that so fascinating. It’s almost the role of the Judge is to listen, not to just what’s being said, but what’s not being said.

Jo: Yes. And sometimes Judges will intervene, as you’ve possibly seen, and say, “Mr. Davis you’ve been asked that question three times, for your own sake I urge you to answer that question.” And they’ll do that to you and me as well. Because if I’m being, they have to make a decision as to whether they think I’m being evasive or not answering the question. The two are different.

Aled: Yeah.

Jo: Don’t forget, here is the linguistic issue that I’ve learned out of the cross-cultural, this is where the cross-cultural led me into working with judges and that is that the assumption within a language, within a culture, is that if I ask you a question, which it is proper that I ask you in a public setting, and you fail to answer, and we’re both English speakers and we both understand the culture, then I am entitled to assume that you are being evasive.

Aled: Yeah.

Jo: And a very particular inference to be drawn from an evasive answer.

Aled: Yes.

Jo: That is that you’re not a witness of truth.

Aled: Yeah.

Jo: But very often aboriginal people are imprisoned for failure to say things that they cannot say in front of strangers.

Aled: I think back to one of the very first meditations that I think I was, I assisted on, and on one side of the table you had a group of suits, professional services or something like that, I can’t remember who they were, but they were all dressed up, suited and booted, and on the other side I think it was a farmer, a pig farmer or something like that dressed in an outfit that was too small for him that he probably borrowed or dusted off, never worn for 30 – 40 years just clammed up.

He had, I think, one solicitor with him. My inference was that the guy was completely intimidated by the entire situation. Just couldn’t speak. I was noticing that there was something going on inside of him. I mean physiologically he was gripping the seat, almost feeling trapped. And at one stage he just got up and ran out of the room.

And this was in a big law firm, somewhere in London, and I went after him and just sat with him, got a little bit curious and asked what, I can’t remember the question, but just gave him a little bit of space. And then he kind of poured out with this, his troubles, and his difficulties, and his family leaving him, and as a result of him losing the business, left high and dry. But the other side didn’t know any of this.

And I think when we got back into the room the mediator asked, referred to the conversation that we had in private and said, something like I think it would be helpful if you could share what you shared with us outside the room. After awhile he did and the other side just fell away in terms of, they had no idea about what life was like for this guy. And the settlement that they reached as a result of him being in charge of himself, just for a moment, being . . .

Jo: You just summarized it perfectly, Aled. That’s the idea. That you put the person where they are in charge of themselves. They don’t need an external person to say, to take charge of them. And certainly in courts very often people will have tantrums. I mean I describe it that way because that’s what it is, just an adult tantrum has a very different perception. But one of the things that you did was a very important phenomenon for mediators and that is that you do what you can to get this person talking in a strange situation. Because once they have heard themselves begin to communicate in that setting they become more confident and they’re able then to say what needs to be said in that setting.

Aled: Yeah.

Jo: You don’t lead them into [an area] by taking them somewhere they don’t want to go. Once he had heard himself say it to you, he was much more likely to be able to say it someone else. Because what you’re role, in that moment, was to model acceptance. And it wasn’t just modeling acceptance, you said, you were curious, and you were interested in what he had to say. And you accepted what he had to say for one, if I can put it this way, one man to another. In fact in a funny kind of way, one business man to another.

Aled: Yeah.

Jo: Not the same business, but once he’d done that he was able to do it again. That perhaps also goes into mediation as one of these important ideas that you use what you’ve got. And you used a private moment. Mediators use a private session. You take that person into private and say, “Look, we’ve had a couple of hours together, but I get the feeling that you’re not saying everything there is to be said. I wonder why that is?” And let them say, “Look, I don’t want to tell these guys the following stuff.” And you can say, “Why?, Why is that?”

Aled: Yeah. Yeah.

Jo: And then you can encourage them to say precisely this if the person thinks this is what the other side needs to hear. All they need is to be able to be primed to do it. Now obviously a judge in the courtroom can’t do that, but one of the things that a judge that had been in a workshop that I ran told me was, he said, “I’ve had far too many people become so nervous that they don’t, they can’t operate in the courtroom. And eventually they just [inaudible 00:15:51].” As he put it.

They become unmanageable. They shout. They threaten. They get dragged off to the [hills] to cool off for a couple of hours. This is regular, a regular, and he said, “What I do now is when a witness who’s speaking [inaudible 00:16:07]” he said, “One Christ like hand and I tell everybody in the court that Mr. or Ms. So and So is speaking, nobody move. I don’t allow people to come in. I don’t allow people to go out. I stop counsel if they speak to one another. And I say can we do Mr. So and So the courtesy of listening.” And he said, “The moment people feel they’re being properly listened to by me, in a courteous way, everything changes. Everything shifts because this is their case. Or in other situations it’s their moment.”

Aled: Yeah.

Jo: “And I will not allow that moment, for them to be robbed of that moment.”

Aled: Yeah.

Jo: Another one of those phenomena that a mediator, I think it comes from mediation, or rather it’s always been present but now judges are very comfortable with doing precisely that. And in the old days, the person that ran the court was the barrister.

Aled: Yeah.

Jo: If they wanted to call out and get on their mobile at the exit door, or having nodded they do that. And these judges are now putting a stop to that and saying, “No, no. I run the courtroom and right now Mr. So and So is speaking. You will either sit down or leave, counsel, but you won’t sit here and talk to your client.” And that kind of taking charge of the courtroom and it’s atmosphere makes an enormous difference to how tense people feel.

Aled: Yeah. I can really see the value in that. I guess what really interested me when I read about the work that you do, I mean part of my motivation for setting up a Mediator Academy was I attended loads and loads of networking events and mediator’s seminars and where the usual suspects would be there. And I’d meet newly trained mediators, young aspiring mediators and they were all frustrated with the lack of opportunity.

Jo: Of course.

Aled: And I suppose the majority of my work is working with groups and facilitating. So in terms of how much mediation I do is probably about 10% of my work.

Jo: But that’s straight mediation. Natural facilitation is its own form of mediation.

Aled: Exactly. Exactly. And I guess what, and I’m always working with conflicts. Whether it’s someone’s internal conflict. Whether it’s conflict within a group. Whether it’s conflict as, between two parties, two organizations. And I think, I want others, I mean there are so many people doing so many different things all over the world, not just mediating, but levering, using their passion, using their intent. Putting their intent and their skills to good use, to utilize their skills and I found that the real travesty all these people that invested time, energy, resources to train to become mediators and weren’t putting it to use in whatever way. So for me, giving people ideas about how they can put their intentions to good use and just thinking differently about what they’ve got and how they can contribute to this world. That’s my mission.

Jo: And well, Aled, I think that’s the thing that is so often shared. If mediators want to mediate against work in the tax department, I think they’ve got a problem. I think it’s something that comes from a place of commitment to a different way of operating.

Aled: Yeah.

Jo: And we, I ran a project in the [inaudible 00:20:01] court here for four years. I have a lovely little video that was made professionally, a little DVD that was made because so many countries were interested in the project that the chief judge made a DVD. And part of it is interviews with judges and part of it is interview, one part of it is interview with me because I was the judge’s so-called trainer. And I refused to train them. I said, “How can I train judges if I’m not a lawyer and therefore having never been a lawyer I can” it’s funny how I failed to be appointed to the Bench. As a Tribunal member I was a non-lawyer tribunal member and there are some.

Aled: Yeah.

Jo: And they walked me into the courtroom where this filming was to be done and I couldn’t resist. The camera’s on me and I said, “Just look at this place. Just look at it. It’s so intimidating. Everybody is sitting here and the judge is there.” You can barely, if the judge didn’t have a very elegant timber wall in front of him, you’d be looking at his shoe tips or her shoe tips. You would not be seeing, you’d have to do this to see their face.

Aled: Yeah.

Jo: It’s literally, it is the modern equivalent of kneeling.

Aled: Yeah.

Jo: And one of the things that we needed to do if the judge was there is to bring the judge down into the room at least linguistically.

Aled: Okay.

Jo: Because judges were attempting to use what we now call the less adversarial trail model of disputes involving children in the family court. And in the less adversarial model the judge speaks directly to the parties.

Aled: Right.

Jo: Most wonderful thing about that is that the parties are actually sitting there saying, “Your Honor, I love my kids. They live with my wife. I agree that they could go and live with my wife, but I haven’t seen them for nine months. And she’s after me for the payment of child support, but I won’t pay because she’s keeping the kids away from me. In fact, I’ve had to hire a private detective to find out where they are.”

Now instead of the judge taking three days of evidence around whether that’s true, the judge looks at her and says, “What do you say to that Mrs. Brown?” And she says, “That’s quite true. I know live in a country town called, X, and the children aren’t known as name of husband. They’re known as name of present boyfriend because I didn’t want the people in this small town to know they weren’t his kids.” So we’ve all clarified why he can’t find his own children and if she doesn’t say pick up the phone and ring daddy or ring him herself, he’s effectively cut off from his children.

Aled: Yeah.

Jo: Judge in that case doesn’t then punish her. He says to the family, “I think we should take a little bit of expert evidence on the effect of children of losing one parent in this sudden and dramatic way.” He calls in an expert to talk about attachment. And after about five minutes of expert evidence and that person is sworn, the parties are looking at each other as if to say, are we doing this to our kids? And everything shifts and the whole thing went from three days to one day with an Agreement At Will by the parties to try something different and come back in three months. It has made a dramatic difference. And of course the judges were very nervous about it.

One of the judges said to me on the first training session — and I’ll quickly tell you that I didn’t train them, but that’s interesting for mediation as well — one of the judges said to me, “I don’t think I can be in this workshop. I don’t do what you described. That’s not what I signed up for. I signed up to [inaudible 00:23:55].” And so sometimes when I’m training judges I give them the gift of [inaudible 00:24:00] to read. Do I believe in redemption or punishment? Can people redeem themselves? And they do something in their interests and their children’s interests which transcends the conflict.

Aled: Yeah.

Jo: [inaudible 00:24:19] and what do I have to find in myself, like an actor on a stage? Is something else possible? And then if I believe, what do I have to do differently? That’s the movement. The movement comes from here. So I said to the judges, “I won’t train you because if you haven’t done this, it stands to reason that I’ve never done it. So you give various things a whirl and then let’s get back together again and see what works.” And together they devised a model. And I just kept setting it down and serving it back up to them. And after a couple of months and we did this over four years, after a couple of months they had a model, after about six months they had a model. The hallmark which was no wigs and gowns. Though some of them preferred to wear a wig, which some of our judges still do because in the family court there have been murders in Australia.

Aled: Okay.

Jo: So for various issues, but the thing that I learned about that which in a sense is a straight line with mediation, is that if you believe intensely that the answer to this conundrum, because it’s often not a problem as such, but the answer to this momentary obstacle lies with the parties. They have it already they just don’t know how to put it on the table. Because they’re ashamed. Because they don’t know if it will work. Because they don’t want to take responsibility for it. Whatever it is. Our job is to do unlock that moment so that they look, crazy as it might sound, I’ve got an idea.

Now obviously people don’t say that in court and they don’t say it in mediation, but the mediator can say, “I’m interested in hearing whatever crosses your mind whether you think it will work or not because every shard on an idea builds another idea.”

Aled: Yeah.

Jo: So let’s rip. let’s hear it and [inaudible 00:26:12] to do this. They do it far better than I do.

Aled: Okay. You could just keep on going, Jo, just keep on going, but how about we rewind back to, because I’m always curious about how people get into what they’re doing. How you get started in mediation? So I’m curious to know how you got started in mediation and kind of walk me through some, I don’t know, some key milestones on your journey. Things that stand out for you and then we’ll freestyle along the way and pick a few things out. How does that sound?

Jo: Terrific. A terrific thing to do. I think it probably really started, I worked at the anti-discrimination board in the early days of the Anti-Discrimination, which is legislation here in the State of New South Wales in Australia. Legislation enacted in ’74 and in ’79 I got a job at the Anti-Discrimination Board and ended up head of Community Relations. And in that process we used to, the conciliation arm, conciliated complaints and we went in afterwards as the community relations people to clean up the mess that a dispute had left. So, if there had been a sexual harassment complaint in a hotel, we would go in and train the hotel staff in understanding what’s a joke and what’s sexual harassment.

Aled: Okay.

Jo: And gradually over time the roles, they didn’t merge because conciliation was always quite separate and remains separate from community education, community relations. But one day my colleague Greg [Church] who’s now an academic and a writer in this area, and a very fine one, said to me, “You know this stuff that we do that we call, that you call community conciliation, where you go in afterwards and talk to not just the parties, but to the people affected or who heard about the dispute, the community of people in a country, town, or hotel whatever it might of been, it’s got a name. It’s called mediation.” So we got ourselves trained. And that was in 1980. The scales kind of fell from my eyes and I realized that what we had been fiddling around with in the dark had actually been done for a number of years, probably for generations in some societies, so that’s how it began. And one way or another I’ve been doing it ever since.

Aled: Yeah.

Jo: In one guise or another.

Aled: I mean what drew you to that particular role, to that particular task, that job?

Jo: Probably the fact that I am the daughter of Immigrants. Refugees to Australia around the time of World War II. And our first language at home wasn’t English. But because I was the last born child or the second child and my parents had been in Australia a considerable period of time, longer than obviously when my brother, my older brother was born. I was the one that spoke English best. And I spoke unaccented English. My brother today, at the age of 70 or almost 70 actually has a bit of German accent even though he was born in Australia. So I was the family’s spokesperson from a very young age. And I had a very strong sense of what I was trying to get across and what I think people were hearing. So there was always a kind of duality about it and so I got very interested in language because I also spoke two languages.

So if I can put this in a joking way for a minute, Aled, your viewers will enjoy this, I was on what used to be famously called, The Bondi Tram. Every tourist from London to Sydney has been to Bondi Beach and you used to get there by tram. Jump on a lovely tram which of course didn’t pollute the way our buses do now and we’d role down the hill towards Bondi, which is where we lived, it’s where all the immigrants lived because it was not a flashy area, I promise you, it is now. And we were sitting on the tram and my grandmother was speaking German to me because that’s the only language she spoke. And somebody said, in the way that Australians did in the ’50s, “Speak English.” You know, probably you bastards, speak English. And I just turned around and said, and I remember doing it guilelessly, and said, “She can’t.” So I didn’t hear it as a racist remark, which is what it was, what it is today.

Aled: Yeah.

Jo: I heard it as an invitation to do something, which we would of gladly done had we been able. So there was always this kind of duality. They were being racist and they were disarmed by a child saying, “She can’t.” So I’ve always seen things in this double way and I did study language at the University, I did a degree in Post War European Literature and majored in Italian. But I’ve always seen the various meanings that people attribute to things. And I love sitting in a setting and disputes are a classic aren’t they? Where people because of a dispute have come to believe that one is lying and the other is telling the truth. I’m of course telling the truth and you’re lying, that’s the iron rule of disputing.

Aled: Yeah.

Jo: [inaudible 00:32:00] I can tell you what really happened. But in fact what you’ve got is two versions of the same event. Two perception of the same situation. And if we can understand those perceptions and the parties can hear each other explain why they perceive it that way, then a meeting of the minds is possible. But that’s, for me that’s the trajectory.

Aled: Yeah.

Jo: It’s always . . .

Aled: Okay. Okay. So I’ve lost you’re . . . can you — yes, okay, keep going in and out but I think it’s okay. All right so, you trained as a mediator in the 80’s, 1980 and where did that take you then?

Jo: I was at the Anti-Discrimination Board until ’84. No, I’m sorry. I’ve just given you the wrong times. I trained as a mediator in the early ’80s and I was at the Anti-Discrimination Board till ’88. And then joined the Administrative Appeals Tribunal, which is our, we have a package of administrative laws, very like yours, but I think ours and Canada’s were enacted before the British ones, if I have this right.

Aled: Okay.

Jo: Where a citizen can come before that Tribunal and question the decision of about 340 Acts of Parliament, if that decision impacts on them personally. So, tax laws, Social Security, compensation law, the refusal of a grant of a pilot’s license. We were the mob that had to adjudicate whether Alan Bond was a fit and proper person to hold a broadcast license. And just guess how we found? We found that we wasn’t. And the rest is history. Poor man has been through some difficult times recently, but that was, that’s the sort of case that the Administrative Appeals Tribunal would sit in. Experts sat in tax, so I didn’t sit in Tax, but I sat in what are called the [inaudible 00:34:04] jurisdictions and Social Security Compensation and so on.

Aled: Okay.

Jo: And in those situations we often saw people how had been in dispute in the work place and then who had then got “ill.” So there were always these thoughts that they were malingering and often they were language or cultural issues. Because where people were in those difficult jobs, I used to say in my decisions was [referable] to the census. It wasn’t that this person was unable to do anything else, but if you’d look at their people who had been in Australia five years or less, were clustered in the census. You would see that they were in that kind of job. And by the way, just for interest of UK viewers, in Australia for a long time we talked about Mediterranean Back, which was a way of saying that people who were from the Mediterranean Basin [was] claiming back injuries.

And one day I decided to do my own research on that. And I discovered that — by the way it was then, briefly, well I think it’s still called Lebanese Back it is now — and before that I discovered it was called, Foundry Back, Irish Back, and [Shira’s] Back. And at every point in history, when it had that name, the people concentrated in back breaking industries were people working in Foundries, were Irish (that’s an and/or), were [inaudible 00:35:38], were Mediterranean, or were Lebanese. So the most recent arrivals are clustered in low income, high physical activity work, often untrained, unskilled, and you get a lot of back injury. And so, statistically, you would of had to say that the chances, the probabilities that they’re being injured in work were far higher.

Aled: Okay.

Jo: And we had a problem seeing it as being referable to their culture and rather referable to the work that they, the only work that they could get. A very big difference in the decision making that we were able to do.

Aled: Yeah.

Jo: We never [inaudible 00:36:17], but in the 1980’s it was called Irish Back or way back, and of course it was Convict Back as well because that’s our history. The people that do the back breaking work get the sore backs, surprise.

Aled: Yeah.

Jo: [inaudible 00:36:34] are happy to see it as referable to culture.

Aled: Okay. Okay. And at what stage then did you get involved in the Native Title?

Jo: When I left the Administrative Appeals Tribunal I was appointed, in fact I left the Administrative Appeals Tribunal because I was cross the point of a Native Title Tribunal in ’96, which was two years after the law, the [inaudible 00:37:04] case had given rise to the Native Title Legislation. And the aboriginal people to lay claim, to make claims under the law. Because they had been denied the principal of just compensation. You would know, Aled, that Crown can expropriate land, you and me as well if they discovered gold under your land and oil under mine, then as you know in British law, everything a certain distance underground belongs to the Crown and they can expropriate our land, but not without just compensation.

Aled: Yeah.

Jo: Aboriginal people had consistently been removed from their land and the land had been turned into free hold or the land had been turned into National Park or whatever else and they had never been compensated. So the essence of Native Title Legislation is just compensation for such expropriation. And it’s a complex, political situation. People felt very strongly about it and still do. It hasn’t been the success that I think many of us hoped it would be.

But it was very important and remains very important work not only done by the Tribunal now, people are short circuiting it by hiring a lot of really excellent people who will then negotiate between government and Native Title parties to achieve an outcome. For example, if an oil pipe line is going to be laid from the top end all the way down to South Australia. Then all the land it crosses, if you regard it as Native Title Land where it’s claimable, then you must negotiate with the traditional owners. And that’s been part of the successful process.

Aled: That kind of work strikes me as cross-cultural mediation personified really.

Jo: And it was, it struck me force-ably on the first trip I think I did to North Queensland, but I didn’t know this country in which I was born at all. I only knew how it looks from the perspective of a comfortable, safe, middle class existence.

Aled: Yeah.

Jo: Not the [inaudible 00:39:18] with aboriginal colleagues. And I would be standing there with them and we’d walk in together. And we’d do this as a bit of a joke, and I would be served ten people before my aboriginal colleague was served and we’d come in the door at the same moment. And this was in a shop in me home town.

Aled: Yeah.

Jo: [inaudible 00:39:42]

Aled: Yeah.

Jo: So just seeing it from that perspective, standing with an aboriginal colleague, [Lola Edwards] sadly no longer here because she passed away a couple of years ago, standing with an aboriginal colleague and putting my hand up for a taxi and having taxi after taxi slow down and then drive away when they saw that one of the people was aboriginal. That had to be experienced to actually be believed. But the [inaudible 00:40:09] of discrimination are there, you won’t of read in England, but one of our great Aboriginal singers recently, whose blind, was refused a taxi late at night after his concert, which he had a standing ovation. He couldn’t get a taxi away from the venue. He stood in the street for ages. And publicized it the next day so there was all this discussion, was it racism or is it reasonable for taxi drivers to refuse people that they think might be violent.

It’s all on. It’s all out there. And that’s what people [inaudible 00:40:44] in the process of getting have always been there rights. So it’s really a tough question and you sit with [inaudible 00:40:55] government authorities for example, who say, “Oh no, no, we know this community, we’ll just wonder down there with a case of beer and we’ll have a bit of a discussion with them and everything will be all right.” And I said to them, “Do you have any idea that they have the ten best Native Title lawyers in the land, arranged on their side?” “Ah” said the counsel to me, “Do you think we should consult our lawyers?” And I said, “Yes, I do think it’s a good idea, the game has changed.” It was a game changer. People thought they could wander down and get the other side drunk and get them to say yes suddenly realized they had to negotiate as equals.

How do you negotiate as equals to someone you don’t say hello to in the street? With whom you and your family have lived with for 40 years? [inaudible 00:41:43]. You don’t deal with disputes. You create them. [inaudible 00:41:50] creates the dispute or creates a conflict if not a dispute. Because at some point the Native Title parties are going to say, “You bastards have known where we’ve been for 90 years, but you’ve never knocked on our door and asked permission. And the only reason you bastards are doing it now is because the law says you have to and how good is that? Aren’t you cowards?” And that goes to the biggest coal miner in the country.

Aled: Yeah. You said earlier I think that it didn’t turn out, or it hasn’t turned out as well as you had anticipated or many of you had hoped. Why is that?

Jo: Look, in brief, it’s because the political deal done to get it through Parliament was Wholesale Extinguishment, as it’s called under the Act, of certain preceding events. They’re called [PEPPERS], Preceding Events of Various Kinds. So that if preceding the year in which the Native Title [inaudible 00:42:56] Legislation was passed, the land had been free holed, the year before when the legislation was before Parliament, then Title to that land is extinguished and remains, they can’t claim it. So a place like Mission Beach in Queensland, now it’s called Mission Beach for a various obvious reason, there was an Aboriginal Mission there.

It’s paradise. You can now go there and spend $600 Australian a night on accommodation and go lie on a lounger and sit under the Palm Trees, but it was absolutely rigorous Aboriginal country no body went there. And the year before Native Legislation was passed, the Queensland government sold it for a $1.00 [a head there], Queen an acre, [inaudible 00:43:49] to be called the Australia, The White [inaudible 00:43:51] Brigade. The land developers who had put up anything on any piece of land just to make a buck. Instead of that being wound back, and people wanted it wound back because it was so close in time to the passage of the legislation, but the Census from Queensland wouldn’t of agreed to the passage of the legislation had that Act not been part of the extinction regime.

Aled: Yeah.

Jo: So aboriginal people feel very bitter about the land that they can’t claim and they’re right to feel that way.

Aled: Yeah. Yeah. I mean I can imagine how these experiences have really contributed to the kind of work that you’ve done after that and certainly the work that you’re doing now. Tell me a little bit more about how those experiences have impacted on you? And I guess, if in any way they’ve influenced the way you’ve approached meditations or approach the way you mediate.

Jo: I think they have in that, I sit there thinking I wonder if this person of good will understands what this other person is actually trying to get across. I wonder if the failure to understand the historical context or the background to what the person is saying. I wonder if failure to understand that is what’s giving rise to this agitation between them. So that if for instance, if somebody says, and I’m thinking of a particular dispute and it was a business dispute [inaudible 00:45:33], a bank, “How old are you?” he said to the lawyer for the bank. And the lawyer for the bank looked nervous and said, “I’m 39” or 41 whatever he was. And he said, “Well, my friend, I was making” whatever it was he was manufacturing, “I was making widgets when you were in nappies. I built this business from nothing. And you guys are taking it away from me.”

Now that’s a commercial dispute, but you and I know as mediators, Aled, that it’s on for young and old as we say in Australia that’s it. The parties, very interested and very decent lawyer for the bank was shocked to be attacked and he went back into a little hole. And I said to him, “If you’ll permit me everyone, I think this is quite a useful place to start. I think something is being said here, which is about how it feels to build a business personally, which it might be useful for the bank to understand before we begin to talk about the denial of credit. Before we begin to talk the text of this dispute so far, just having a crack, which is why the bank is refusing to advance any further loans to this business and why the business faces bankruptcy, bankruptcy proceedings.”

And so I, and I said to the bank’s lawyers, “If it’s in order for you, I’ll invite Mr. So and So to tell us his story.” And they said, “Well, provided it doesn’t take all day, we’re happy to listen.” So I said to Mr. So and So, “Can you tell us in a nutshell?” And he said, “Sure I can.” And he started with I came to this country with nothing. And it’s exactly what you said to me in our preliminary, and it’s exactly what you said to me about your farmer in that mediation. The moment he had heard himself say how he was feeling, a) he settled down, so he was much easier to deal with and b) they started to understand why he had been so [obstreperous]. They were able to say, “Look, we didn’t know any of this.” And he said, “I didn’t expect you to. You couldn’t of known.” So they were both off the hook. “How could you of known this?”

And they said, were able to say, “We can see that this business is more than just a business to you. Our concerns are the following: we don’t see on your present terms of trade that you can trade out of this whole.” He said, “I’ve done it three times before should I tell you how?” And they said, “Yes.” Now I’ve seen the same pattern repeated in a mediation scheme in Australia which is called the Farm Debt Mediation Scheme and culturally speaking, Aled, there is nothing more different than an Australian country farmer, man, a person with an agricultural holding, even if it’s a family holding and in Australia don’t forget it could be the size of Luxembourg.

Aled: Yeah.

Jo: [inaudible 00:48:39] returning any money. That person and a bank, those are people from two different countries. One of them comes from Bank Land and one of them comes from Hard Sog Land. And they simply don’t understand each others language. And my job is to be an interpreter every bit as much as if they were speaking German and English. Say, I wonder if you’ve picked up what I think banker was saying farmer? And farmer and banker if you’ve picked up what I think banker is saying? Could I try it out on you? I think farmer was saying, I believe that if I plant canola, even though I don’t approve of planting canola, I believe I will be able to pay off my debts in two seasons.

Will you give me two seasons grace? Because under our Farm Debt Mediation Scheme the bank can foreclose on bad debts over farm holdings, but not without mediating. And the bank originally, the bankers originally resented the disequilibrium in that model because the farmer could refuse to mediate, but the banks couldn’t [inaudible 00:49:58] say to people why they can’t keep on funding them. And I see that as being cross-cultural and Aled you remember the gentlemen from [Lancashire] who was in the workshop we were in together? He spoke about culture in those ways didn’t he? A farmer from Lancashire and a London Banker.

Aled: Yeah.

Jo: [inaudible 00:50:25] they may both be English speaking and have no other language, but those are entirely different cultures and there is a lot of work to be done to get them to understand the import of what each is saying to the other. Because neither of them is coming at this with ill will. They’re coming at it from a particular perspective and they have good reason for doing this. If they can understand each other and accord is possible.

Aled: Yeah.

Jo: A different [inaudible 00:50:53] possible.

Aled: Yeah. As you’re talking about this now it makes me think, and I remember back to that example and the workshop, it kind of illustrates just how broad the term culture is. It’s just foremost a difference, any difference in experience, in maps to the worlds . . .

Jo: And also, Aled, the knowledge that underneath those differences lie similarities and those are human. And we need to get at those as well.

Aled: Yeah.

Jo: Which, I think I said at the workshop, and I always say this, that I feed and water people in the sessions. We’re mediating and I say to people, “Any one for strawberries?” In weather of the sort that we’ve been having in Australia recently, I would always have lots and lots of water on the table, not just coffee in the corner because people need to keep themselves hydrated otherwise we’re in trouble.

Aled: Yeah.

Jo: And when they go and get a jug of water the first time they pour themselves a glass and when by lunch time they’re pouring a glass they’re looking around the room and saying, “Anyone else?” I know we’re getting somewhere. Because they’re pouring water for everybody else who might be thirsty in the room. That’s a very powerful, unspoken bond.

Aled: Yes.

Jo: I always start by pouring water for everybody. And after awhile I watch and see who’s pouring water for whom.

Aled: Yeah. I mean it’s very interesting. Something you said earlier about modeling acceptance made me think how much of an impact a mediator can make in so many different ways beyond what we might typically perceive as our role and the behaviors that we should be practicing within the context of mediation. Just the small things that are helping parties come together rather than go apart, as you say, just thinking about the different ways that one can tap into the differences in the group.

Jo: Someone says something and the other side looks to me and says, “There you are mediator, that sort of offensive language that I’ve had to put up with.” And I say, “Look, if you’ll permit me, I’m going to make a personal observation here, I didn’t hear that as being intentionally offensive.” And they look at me as if to say, so you’re on their side? And I say, “Before you accuse me of being on their side, let me say, that it might of been offended, but I didn’t think the language itself was intentionally, intended to offend you, but you took offense. I see this and I can see why, but I don’t think they intended to say something to you in order to offend you.” Because what I try to do is to deal with a very complex linguistic phenomenon, which itself, once you understand it comes out to be quite simple and that is this idea of intentionality.

That is in order to be a successful communicator you need to know your intention. If I were to say to you, “I wouldn’t wear black.” You might think to yourself, who the hell is this bird who knows nothing about fashion, who’s telling me what I should and shouldn’t wear and what does she know? She’s 101 in the shade. I’m 40 or 39 and I know this stuff. I know what’s [cool]. But I said it because I was presuming affectionately a closeness which you don’t feel. And if there’s a mediator present they could say what a fascinating moment that was. Joe, you said X, and Aled you reacted Y. What’s happening here? Now you wouldn’t necessarily do that with the parties together.

Very often you can. I say to people, “Look, I’m picking up that this is the kind of thing that has caused more conflict in the past, but I think Party A’s actually saying something different. They’re not saying you shouldn’t wear black. They’re saying that they really think you would help your own cause in the organization if you wore what everybody else wears. If you actually bothered to put on your uniform it might actually help you. People might actually see you as behaving if you belonged. If you wore the Toyota T-shirt.

Aled: Yeah.

Jo: So if I’m going to ask you an even more difficult question now, Aled, I’m going to ask you why do you never wear the Toyota T-shirt? And you can say, “Well, screw that” for a joke. I’m an individual and I’d say, “Yes, but I think they’re telling you something about the group.” There we’ve come to what is sometimes a cultural phenomenon that is the perception of a person as an individual, the requirement of a person to function as part of a group. And that can be a cultural pull on the same person. And in the beginning of that workshop I said, very often as mediators if we’re not cross-culturally aware, we see everyone around the table as a collection of individuals.

At the point in which one party makes an offer to the other and the second party refuses that offer, I often say to them in private, I wonder why you refused that offer? Now I don’t describe the offer as good or as perfectly good, or I can’t understand why you didn’t do it. I don’t infer that they should have. And they very often say to me, because I couldn’t sell it to the boys. I couldn’t sell it to my community. In other words, sitting behind the person that we see is a group whose power over that person is very strong. And people functioning in more powerful circles where mediators mostly operate, operate as individuals and we fail to see the group dynamic behind an individual at the table. We fail to see at our peril. Because technically negotiating with the head of a union who has to take a message back to his union.

If you conceptualize it that way or conceptualize it as someone acting on behalf of a board and they have to go back and sit with the board and say, I’ve negotiated this way out of it, we can either go to court or we can accept half a million pounds. What do you say? If you conceptualize it that way, you’re on safer turf. Persist in saying to people, do you have authority to make a decision? And if they say no. We say this mediation can’t go ahead. Well I say it can. I say in your case what form are you hear? And they will say, I work for BHP Coal, I’ve got to go back to the chairman and sit down with the board at the meeting on the second of March and fill them what I agree here. If I agree something we’ve got to hold it till 2 March and then I’ll come back to you and say if we can live with it. When everyone understands it, I see nothing wrong with that and that allows an aboriginal community to say, [inaudible 00:58:15] and if I can’t with something I will have to try it out on my community. Same thing.

Aled: Yeah. So, for me I see that looking systemically at the problem and it’s kind of helpful thinking it that way rather than having a group of individuals. Yes, they are an individual and they’re so much more than that. You’ve talked, you’ve referred a couple of times to the cross-culture trainings, some people watching this might not know anything about it. It would be helpful to say a little bit about that, but I guess what I’m thinking is why, I mean I can see the benefit of doing cross-cultural mediation training, and it’s not because that most of my meditations are cross-cultural in this typical sense, in the general sense. What would, how might a mediator benefit from developing their thinking, increasing their awareness about the kind of cultural issues that would surface in the mediation? Give me some examples of that, Jo.

Jo: I think that the more effective you are as a cross-cultural mediator and I’ll say in a minute what I think that consists of, the more you are in a mediation where everybody appears to be or is from the same culture. In other words, wherever there is a dispute there will be differences or not necessarily even a dispute in legal or actual terms, wherever there is a conflict there will be differences in perceptions of the reality that gave ride to that conflict. Which it’s very hard to understand if all you’re doing is fact finding. Now you’ve read my paper on Deal Making Mediation and you know what I think about it. I think it’s too easy and I’m not interested to make a deal. It’s much cheaper than going to court, those are convergent problems.

That I didn’t deliver to you, you had a contract with me that said I had to deliver to you, you’ve paid, I didn’t deliver, I have to make good. Very difficult mediation. This is almost South Park isn’t it. This is really, you don’t say. I mean people get brownie points and pats on the back for doing those meditations all the time. And they won’t sit down, those mediators and I am one of them, have often not wanted to sit down with family mediators because that’s not what we do, we do something so much more important. Rubbish.

Sir Laurence Street, whose the [inaudible 01:01:20] of mediation in Australia, used to say, “I’d rather do a mediation over 60 million quid than a mediation you’re a dividing fence in a backyard.” Because he said the people mediating over 60 million quid have got their hands in somebody else’s pocket for a start, not their own, which always makes it a lot easier. Nobody wants to go to court over 60 million quid because it’s winner take all. So it’s a foregone conclusion that it’s going to settle. But you talk to two neighbors that are fighting about what’s happening over the fence. Neither of them have the means to move nor wants to be driven out by the other. And you are in an intractable dispute for which you have to mobilize your best skills. And he is absolutely right and he’s been saying it for years.

The better you are at understanding the intractable, the better you are at understanding what’s motivating people in the more, what I call the more regular strain. The bankruptcy mediation is a classic example. If that had been done by a classical deal maker they would of said, “Look, thank you for saying that Mr. Brown, but I’m afraid that’s not relevant here. We’re here to talk about the fact that you owe the bank 17 million pounds. They’re not about to advance you any more money. They’ve declared you bankrupt. You’re objecting to the bankruptcy motion. We’re giving you a chance in a mediation to talk about it, let’s get on with it.”

And I say, “Rubbish.” It’s entirely relevant that Mr. So and So came here with a briefcase with one piece of paper in it that said where he was born and the clothes he stood up in. That’s all this guy had and he started a widget making business and it became a major business but he failed to see the changes in the times. Ready to retool if somebody would advance him some credit.

That was the issue. The issues wasn’t just the bankruptcy. Were they going to let him retool? Were they going to help him find someone else or is there something else possible? There’s a range of possibilities. A very creative outcome was reached. No help from me. I just sat there while they negotiated, but I think that the change that I brought about was allowing Mr. So and So tell them his story in the beginning about his creativity, that he [inaudible 01:03:38] a hole in the market when he arrived in Australia in 1940 whatever it was.

So what do mediators learn cross-culturally? They learn that in some cultures what is said is not the end of the matter it is merely the words of the matter. That what that means is informed by who said it, where and what, sitting where, looking how, after what sort of time frame, and in what social setting? And if you don’t know that, you assume as we do in the English speaking world, that the words are everything. So the first cross-cultural principal is quite literally that the words are only part of the message.

Now we’ve all been to communication workshops where they say non-verbal blah, blah, blah. Yes, that’s absolutely right, but beyond the non-verbal is the cultural. So if I believe you, Aled, but if the same thing was said by your ten your old son, I’d take it with a grain of salt, you know what I’m talking about. If you said, our family home is full of argument, I would think wow, it would be an exciting dinner table with dad and the boys and mum all going at it hammer and tongs. No I don’t. Yes, I agree with that. No, we don’t agree with that. That’s wonderful. But if you’re son said to me, my family dinning table is full of conflict. I might call the authorities. Because he might be saying, I can’t bear it and it’s affecting how I work at school. So [inaudible 01:05:27] we know that stuff. We do this. We know that if a child says it, it’s different than if an adult says it. But if in some cultures people say one thing, they might mean another.

So in [inaudible 01:05:39] in Iran between two professors of medicine, one of who was Indian, of Indian, well trained in England, practicing medicine in Australia. The other one was Australian. The Indian mediator said, “He keeps accusing me of not being a team player. Well I don’t want to play on his team.” So what was he saying? He was saying, I am a team player, but I disapprove of him, but he was too polite to say that up front. So in a private session I said to him, “You said earlier that you, I think you implied that you could be a team player, but not with Professor So and So. What did you mean?” And he said, wait for this, “Think of me as the only man in a nudist colony wearing a suit.” So he insisted on levels of metaphor because he still wasn’t going to say to me, I think the other guy’s ripping off the government.

And the issue turned out to be I think he’s counting patients as private patients, whom he sees on behalf of the government as public patients and for whom the hospital is funded as public patients. I think he’s double handling them and putting them through his private rooms and charging for it. And therefore he’s profiting by the Crown. And that was an incredible serious allegation for which the hospital could be de-registered and the professor, the other professor could of lost his medical qualifications. But it had been hedged around with, I wouldn’t want to play on his team. I’m the only man wearing a suit in a nudist colony. What does that mean? Now, in another situation —

Aled: So before you move on from there, I mean where did you go with that, if I can ask?

Jo: I asked him in the private session, why he hadn’t made that allegation in the joint session?

Aled: Okay.

Jo: And that’s when I realized how many degradations of public and private there are. We think of the joint session of being in it’s own way public, even though it’s confidential. And he said, we think of it as being confidential, I’m sorry, because we all signed up. And he said, he more or less said, it’s too public, I can’t say that out loud. So I said to him then, “Why are you telling me in a private session. Where you know I can say nothing outside this conversation, unless you give me permission to say so.” And he said, “Because I can’t be sure. I only suspect.” But that suspicion had disrupted the whole unit.

So I said to him, “Is there anything you can advance as a set of ideas” and I was thinking options, “Which might take care of that situation without openly accusing him of what you’re accusing him of, which is fraud?” Serious fraud. Profiting by the Crown is serious fraud, if you’re a Crown employee. And he said, “Yes, I think I can. I’ve got a new system that I’d like to suggest for our unit. And if he buys it, it will stop him from doing this.” So I said, “Tell me what it is.” And he did and I said, “Are you ready to put it forward?” And he said, “Yes, I am.” And he did. And the other guy bought it immediately.

So I say to you and I say to other mediators, we will never know if Professor A knew that it was a gotcha moment, as we call it in mediation, he’d been caught and he had no way out so he might as well go quietly or if he was as innocent as the day is long and never did what the other guy suspected him of and he didn’t care how the system worked, so long as the other guy played ball. We won’t know.

Aled: And is that, —

Jo: [inaudible 01:09:48]

Aled: Yeah. Another way, something else that sprang to my mind, sometimes when I’m working with someone in a private session and they say something like that, something that they just can’t see themselves saying in a joint session, face-to-face. They can’t see themselves saying it because it’s too toxic. They can’t find a way of saying it that’s, so helping them, saying the unsay-able. How do you say the unsay-able in a way that doesn’t generate too much defensiveness, but you present it in a way, I mean re-framing I guess, but not the mediator re-framing.

Jo: You probably model it. You probably say to the person, “Are you saying something like, I believe this unit needs a new system in order for me to work at my optimal level with you?” He’ll say, “Yes, that’s exactly what I’m saying.” Because what I’ve done is I’ve removed the, what you call the toxicity, certainly I’ve removed the accusation.

Aled: Yeah.

Jo: He didn’t want to make it, he isn’t sure of it, so let’s just go for this thing. Now one of the things that we add, people often say, well what does the mediator add? We add a body in front of whom the parties want to look good. Each party wants me to think that they’re the reasonable one and the other ones the bastard. So they both behave in a reasonable manner. Had they’d been behaving in a reasonable manner up until now? I don’t think so. They haven’t had to. It’s been behind closed doors where they’ve been saying, “You bastard.” So once they start to try and impress us with a bit of eye rolling because they see what I have to put with, all of that stuff, they start to behave in ways that are better for them and better for the resolution of the issue.

It’s more likely that an idea such as, could we maybe talk about systems for this unit that might get you out of this mess, which is probably what I said when we came back together. Systems changes that could make it easier for you to work together. Because I understand now from what Professor So and So said earlier that he’s saying that he is a team player but he’s been reluctant recently for whatever reason. But he’d be less reluctant if the systems were clearer. Can we talk about systems? So can I give you an analogy to that which is a cross-cultural analogy?

When you work with a group of Chinese Insurance Brokers, as I did in Hong Kong, with a colleague of mine whose a barrister. And he was presenting a session and nobody in the group said a word. He said to me, “Aren’t the Chinese quite?” So, if you aren’t careful and you have no cross-cultural skills and he has none and he was the first to admit it, you will attribute to the group the outcome of a process. So aren’t the Welsh all very talkative? Why are they talkative? Because Aled’s interviewing Joanna. There are probably plenty of ashen-turn Welsh and plenty of silent Germans, you know what I mean. It’s what’s about happening in this moment.

And I said, “Let’s try doing it a different way and test your hypothesis?” He kept saying to the group, “I want you to use [de Bono’s] analysis.” Positive/negative interesting, well, if you can’t say anything positive about yourself and you don’t want anything said positive about you because it singles you out in a group situation. You can’t say anything negative about yourself or anybody else if you’re Chinese, you’ll never bloody get to the interesting. So de Bono’s analysis is wonderful, but it’s not cross-culturally viable. It fails the test.

So I went in and I said, “We asked you earlier to say a few things about that exchange, what was positive, what was negative, what was interesting, but we’ve got a better idea now. What we want to know is what happened?” And the room, we couldn’t shut them up. He said this, and I said that, and then I said this, and then this happened, and I was amazed, and he laughed, and I was puzzled.

And I said to him afterwards, “So are the Chinese quiet?” Are people silenced with “T” or are they silenced by circumstance? If they’re silenced by circumstance, we’ve got to change the circumstances. We’ve got to take them out of the room and say, “Aled, we don’t say Aled the Welsh are very talkative, but you haven’t been talking. We say, Aled, I’m surprised you’ve said so little up to this point. We’ve sat in the room for an hour-an-a-half, you’ve hardly said a word.” And you might say to me, “Joanna, I can’t tell you how uncomfortable you are making me by doing X and Y.” And I have to say, “Oh, hell,” and I have to do something different. It’s probably me. The mediator sets it up in a way that prevents Aled from speaking. Stops the Chinese from being able to say anything. Why? Because we framed it up as positive/negative interesting. Apologies Mr. de Bono, it doesn’t work.

What was it Richard Nixon used to say? Will it play in Peoria? Very often it only plays in Peoria. Great sounding theory but it’s not cross-culturally viable. Because if you’re Chinese, you don’t say anything negative. Somebody tells you how delicious your dinner is, my friend’s mother does this all the time and she says, “Thank you for saying that about my very poor food. My very poor food. I’m so glad you enjoyed my very poor food.” She spent a week’s wages on the crabs, but it’s very poor food. Because she can’t take praise. It’s poor and I’m generous to compliment her because she’s a poor woman who presented me with the best she could and I’ve been generous enough to praise it. But she can’t say, thank you very much, I’m actually a fantastic cook. Because that is American. If you’re Chinese, you don’t say that. You can’t take praise and you can’t say anything negative. Because otherwise the shame will last forever. I think every mediator should read Sean O’Casey’s, Playboy of the Western World. Have you read it?

Aled: No, but I . . .

Jo: Sean O’Casey.

Aled: Shauna?

Jo: Sean O’Casey.

Aled: Sean O’Casey. Oh, okay.

Jo: And hang around forever, because the idea is that once it’s said, it can’t go away. It’s been said and it stays there. Where is in culture’s like mine, you say it today and tomorrow you say, I’m so sorry, I said that. And they said, that’s all right, you were having a bad moment. And we hug. It doesn’t work everywhere. Once it’s said, it can’t be unsaid. Remember Jeanette Winterson, whose the greatest living English novelist? Who says, in one of her novels, I think it’s one of her, I think it Oranges, no it’s not Oranges Aren’t The Only Fruit, but it’s one of her novels in which she says, “Every night this magic woman goes and sweeps the sky over London, you wouldn’t believe the words she finds there.” Building on that tradition that once said, it remains unless you find a way to sweep it away. It’s done and damaged. The English language tradition around words, but it’s not universal.

Aled: Yeah. I’ve got more of a crude expression, I call that a brain frat. You know when you say something that you regret that hangs around, the stench hangs around.

Jo: It lingers.

Aled: It lingers a lot longer.

Jo: It can damage the relationship. Sean O’Casey’s stuff is all about how it can’t be taken back. Left with that mark forever because you told [inaudible 01:18:30]. It’s a most fantastic, it’s a fabulous stage play, you must read it. He was the great writer of plays of his time. Current day, present day novels [inaudible 01:18:43] Smith would be one I’d say all mediators should read [Adie] Smith if they want to function well in English society. You know that I say having come and worked in England as an Australian, I understood what the expression Best of British means.

I understood. It makes me very emotional. And a loving, generosity, behind the reticence, but in Australia all we see is the reticence. We don’t see what’s behind it. And I’ve experienced it on more than one occasion. I went to a mediation in which somebody had died. In my immediate circle in Australia it wasn’t in my family, but it was my daughter’s-n-law’s family. And one of the barristers in this group, the most senior person, who turns out to be a very devout Christian, jumped up, put his arm around me and beckoned the rest of the group towards him and made a circle and prayed. Look, if Italians had done it, people would of said, “Ah, they’re so warm and loving.” But I had to experience it to see the immediacy in which people responded emotionally through the reticence. And it was all the more powerful as a result.

You have to be prepared to be surprised and amazed and taken somewhere that you didn’t think you’d go. And I think then you’re ready to be what I sometimes think of in the room, as a sort of emotional lightening rod. It travels through you. So at some particular point you can say, “I just felt a sort of chill when you said that.” And I say that sometimes. I say to people, “I felt we were going backwards.” That’s my way of introducing, don’t go there. I don’t say, “Please Mr. Davis, would you mind, we were making progress until you said that.” I don’t tell him off. I say, “You know a chill went through me when you said that. Because ten minutes ago we were saying this. We were making so much progress. Let’s not lose that momentum.” So instead of telling you off, which we’re trained to do, tell the parties to behave themselves and may I remind you of the guidelines. What rubbish? How absolutely [inaudible 01:21:41] it is to remind adults how to behave. You remind me how to behave, I will misbehave. That’s what most people do.

Aled: Yeah. I remember being in a mediation last year and it was a community mediation. It was a dispute between a couple of neighbors and I felt something sinister in the room. It was a dynamic going on. I could not put my finger on it. It was disturbing me a bit. You talk about this kind of lighting rod, viscerally experiencing something sinister going on between the parties. Not being said. And some of the behaviors, I mean the parties were, despite me agreeing some, very rigid conditions on a number of occasions around how they would be communicating.

Jo: Especially a community setting where it’s very personal.

Aled: Yeah. I mean highly, really, really raw emotion. And also people that typically, well, I mean this is an assumption, but from my experience with doing community mediation, most of my community mediation’s people, I wouldn’t say are enable, well they’re less reserved in terms of coming forward. They’re more willing show themselves.

Jo: It’s got a raw quality to it.

Aled: Yeah. I remember I had to stop the meditations. The first mediation and the only mediation I’ve ever had to stop and say to the parties, I’m not willing to continue with this mediation. And I remember the supervision afterwards talking to my supervisor about this kind of sinister element in the room that I couldn’t, I just couldn’t control the parties. And my supervisor, very intuitive, reflected back, well it sounds like they weren’t able to control themselves. And my sense of what was going on in the room, I think I became part of their stuff.

Jo: That’s a risk. I just risked weeping on camera, but I think the risk is, as I say to my daughter sometimes about herself and her partner, if you’re pink and he’s blue, make sure you don’t become purple. Keep your boundaries. Don’t leak all over each so that you melt into one blob that doesn’t distinguish either of you. Aboriginal people talk about white mediators who become blacker than they are. They start to behave like blacks and they say, well hang on sister, I’m the black one, you just stay on your side of the line, this is unhelpful. I know what you’re saying, I don’t know if there was any risk if you stopped it, you felt something that they might to do to each other and I think you did something that is at the heart of mediation.

We promise, I promise explicitly, some people promise it implicitly, we promise that whatever happens in this mediation, we won’t make it worse. And you might of felt intuitively or more than intuitively, consciously that this was going to make things worse. And that’s a reason to stop a mediation. Sometimes if you’re going to stop a mediation you can say, “Look, I’m going to bring this to a stop today and I’ll communicate with both of you and see if you’d like to start up again on another day. Because I fear that if we continue as we are, I’m going to be sitting here with you while things get worse. And I don’t want things to get worse. They’re bad enough already.”

It’s possible sometimes to ferment as a mediator, and I’m sure that you weren’t doing that and I hope that I don’t do it either, but it possible that sometimes the dynamic becomes destructive in which case it’s good to say, “We do implicitly promise that we won’t make things worse. I have a feeling it’s getting worse. It’s worse than it was an hour an ago. Can we just agree to stop today. All recap on the progress we did make. And I’m going to ring you overnight and see if and when you’re ready to meet again.”

Aled: Yeah.

Jo: “And if you might meet in a different setting, I might change the setting so we’re not back in the kitchen where these ugly words were said, we might be in the other persons kitchen or whatever. Let’s get back together again and see if we can progress from the moments we were progressing from earlier” and so on. And now the cross-cultural elements, something I like mediators to know is that, and this part in the way of intentionality as well, is that you need to know what you mean by what you say and you need to be able to explain it at any given moment. If a party says to you, “What do you mean by that mediator?” You’re not allowed to say, “Just what I say.” You have to say, “When I say that I mean” so you model that.

The other thing in mediation that’s critical cross-culturally is what is normally implicit in people speaking within in the same culture. Must be made explicit from time-to-time in people working across cultures. So you have to be able to say, “Mr. Aled, I think when Mr. Johnson said that, he meant X. I think you think he meant Y. And when we in English say X we usually mean don’t be silly. We don’t mean you’re a liar. I have a feeling you heard that as if he were saying to you that you weren’t telling the truth. Now Mr. Johnson am I right about that?” Mr. Johnson say’s, “No, I’m telling him he’s an effing liar.” Well then it’s on for young and old. You can’t rescue some people.

But if he says, “No, that’s exactly what I meant. I meant come off the grass. I didn’t mean don’t tell fairy tales.” And Mr. Aled will say, “Ah, I didn’t know that. Somebody said that to me at work and I had a fight.” Well now that’s wonderful. We’ve now learned something. What is implicit culturally is what we take — ouch, I’m just having another cramp — is what we take a particular meaning to be. But across cultures it can appear to mean something more akin to what it would mean if it were translated. It’s a very complex change.

But remember one person in the room could be mono-cultural and the other one is also mono-cultural but is becoming bi-cultural because this person is an English person speaking English in an English setting. This person is Turkish, speaking English in an English setting. So they are more bi-cultural than the other one. So they’re seeing it two ways. This guy thinks there’s only one way to see it. And you’ve got to [inaudible 01:28:54] that.

And that’s the Welsh thing as well Aled. We, in Australia, as our convict ancestry, possibly are the only ones that understand about the British policy of suppression of language. Aboriginal languages were suppressed and an aboriginal elder giving testimony in a Native Title matter about five years ago, which is recorded on our ABC radio and you can podcast it says, “You’re asking me to remember things that I’ve forgotten when I used to be beaten for saying them.” What a statement.

Aled: Yeah.

Jo: Welsh language was suppressed for 180 years and it almost died. It’s reemergence is the source of study of people like me, of sociolinguists, how does a language which is teetering on the brink of extinction, how do those embers get fanned back into life.

Aled: Yes.

Jo: What is there that you can do that can make a language live? What modern words have to be added? And what sort of fight was there around modern words? How could you make a word in Aboriginal language for wheel borrow when there was nothing that was wheeled in Aboriginal culture?

Aled: Yeah.

Jo: [inaudible 01:30:39] then becomes a cultural adaptation to bring a language to life, but lying behind it is something that the British [inaudible 01:30:48] doesn’t know, which is 180 or more years of the suppression of the language. You want to speak Welsh, go and stand in the corner. Do you have a Welsh accent? You were ridiculed. Do you speak like a little Englishman? You will manage in this society.

Aled: Yeah.

Jo: We’ve now [inaudible 01:31:05] this society so you can only manage if you sound like the power, the Colonial power. [inaudible 01:31:12] in Australia, but they can’t know it, I doubt if British English know it. It’s probably not widely known. It’s a shame for which the British Crown should apologize.

Aled: Well, don’t get me started on that one.

Jo: In England, when [Māori] were visited by Queen Elizabeth? She made a most wonderful gesture. Queen Elizabeth asked what gesture she could make on the anniversary of the Treaty of Waitangi? And Māori groups got together and said, “We want the Queen to acknowledge that the portrayal of Māori as not loyal to the Crown, as a basis for the expropriation of our lands, was not only unjust, in terms of expropriation which is were the focus has been, we want her to acknowledge that we were never disloyal to the Crown.”

And that’s what she did. They wanted it known that was a construct of the settlers, that they had always been loyal to the woman they called Queen [Wikitoria] because you can’t say so many constants in one line. And there is an Act of Parliament which is [inaudible 01:32:41] the claim settlement which has as it’s opening, the Queen’s speech in about 1996 I think, 1998. And that was important. It was to undo the legend that itself damaged them in their own eyes. So, [inaudible 01:33:01] these things acknowledged. So acknowledge is give people in mediation. I understand that you see it this way. I acknowledge that you see it that way. Where to from here?

Aled: Yeah. Jo?

Jo: [inaudible 01:33:15]

Aled: Yeah. Jo?

Jo: Ask the question.

Aled: Look. I’m really mindful that you’ve been really generous with your time already and it’s getting on and it’s the start of your day and it’s the end of my day. And I could continue into the early hours that wouldn’t be a problem for me. Part of me wants to attempt to summarize our conversation and there’s another part of me thinking I wouldn’t know where to start or end.

Jo: Well, let’s look at that. I’ve so enjoyed it. I think we wandered into territory that we might not of wandered into. I didn’t know I was going to go there.

Aled: Yeah. And it’s always a really fascinating conversation whenever we interact be it in a workshop, by email, or face-to-face.

Jo: I’ve really, really enjoyed it.

Aled: Jo, I know that people watching this are going to want to reach out to you and say thank you or maybe connect with you or maybe find out a bit more about some of the work that you do or maybe a bit more about the cross-cultural workshop. What’s the best way of them reaching out to you?

Jo: You could put my email address in there with pleasure, Aled.

Aled: Okay.

Jo: [inaudible 01:34:49] I’d say that’s the easiest way to do it. I’d say Facebook if I wasn’t 66, but I don’t look at it as often as I should. I did look at it on my birthday a few days ago, but I think email is best.

Aled: Okay. And can they, is that, is your contact details available on your website, which is jok.com.au?

Jo: They are, yes they are there is well. They can email through the website, but certainly you can add my email address. I’m happy to exchange ideas with people.

Aled: All right. And when are you next in the UK?

Jo: Late this year. September/October, something like that.

Aled: Okay. Are you planning another advanced mediator retreat?

Jo: Not at the, I think Marta is, but it’s probably at a time that I can’t come.

Aled: Okay.

Jo: I don’t know that I’m going to be involved this year. I’d love to be, but I don’t know if the timing works.

Aled: All right. Okay. Well, let me be the first to thank you. Thank you so much for your time and your experiences and just sharing, being you. And I really appreciate it and I know everyone watching this will. And I really look forward to seeing you when you’re over here, and if I’m in Aus, I can’t foresee that that’s going to be in the next six months, but, what’s that?

Jo: [inaudible 01:36:19]

Aled: Yes. Well, thank you very much, Jo.

About the mediator

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Joanna has been working with groups as a mediator for over 20years in highly sensitive inter-racial and political settings all over the world. In 2001 she became chairman of LEADR, Australia’s largest non for profit dispute resolution organisation and in 2006 became a visiting fellow at LEADR. She was a member of the administrative appeals tribunal for 10 years and later a member of the National Native Title Tribunal where she mediated land cla... View Mediator