Power of Mediation : Culture, Communication and Catharsis/Expression
From a Keynote Speech delivered on 29 September 2021 to the CCPIT’s 2021 International Mediation Summit Forum edited for the Singapore Law Gazette.
It is a great honour for me to speak to you this morning at this 2021 International Mediation Summit Forum.
I have entitled this speech “Power of Mediation : Culture, Communication and Catharsis/Expression”.
I am grateful to team member, Tomoyuki Lewis Ban for his help in researching and helping me draft portions of this speech.
History of Mediation in China
Confucianism is thought to be the source of mediation in China. This philosophy stresses that conflicts interfere with the natural order of life. Confucianism also has a goal of harmonious living. (Judy Winn: “The Ancient Chinese Secret”: A Comparative Analysis of Chinese & American Domestic Relations Mediation published in Indian International & Comparative Law Review Vol 1 at pg 153 to 154)
With this context in mind, it is understandable why there was historically a less adversarial form of dispute resolution. The Confucianism philosophy or way of life projected the ideal society as one free from litigation (also described as “wu song”) (Chan P.C.H.: The position of mediation in contemporary Chinese civil justice: a proceduralist perspective (2016) (Chan) at 2.1).
In fact, Mediation was codified in the legal system of the Yuan Dynasty (1271–1368 AD) (as “lu”). Other authoritative documents such as the Ming Dynasty’s (1368–1644) imperial code also recognized the status of community mediation as the “first instance” forum for civil dispute resolution (Chan at 2.2.1.). If we go back in time to trace earlier Chinese history, we would find that societal mediation was a form of dispute resolution in the Song Dynasty (960–1279 AD), conducted by reputable individuals or community leaders (Chan at 2.2.3.).
It is interesting to note that traditional Chinese mediation is distinct from the concept of mediation we have presently. Mediators in China had the inherent mandate to educate people on Confucian principles and the law. They were therefore not an impartial and neutral third party but rather a conciliator with the goal of advancing the Confucian values (Chan at 2.1.).
The other interesting feature to take note of is that traditionally (unlike modern day), consistent with Confucian ethics, societal needs were considered more important than the desires, rights and wishes of the individual. Mediators persuaded parties, sometimes quite authoritatively; to reflect on their own mistakes, give up their own interests and compromise to settle disputes. The goal was to make the dispute disappear for the betterment of the group (Weinstein International Foundation “From the Traditional to the Modern: Mediation in China”).
In summary, mediation has a long history and well-established culture in China. However, traditional Chinese mediation was heavily influenced by Confucian Ethics. The end goal of mediation was harmonious living and no conflict. ”Make the dispute disappear”. Mediators were conciliators promoting Confucianist norms and the mediator’s role was educative. These historical, cultural nuances should be noted even as mediation is promoted in China. These facets of education and promoting compromise and conciliation is very much well ingrained within the Chinese culture. That said, there are inherent tensions between mediation in traditional China and mediation in modern China that will need to be researched, written about and navigated to reflect the modern socio-political and economic realities.
Secondly, the Power of Mediation in Communication.
As a non-adjudicative dispute resolution avenue, mediation offers a meaningful advantage in open communication found neither in litigation nor arbitration. It is strictly private and confidential. Communications both within the context of (i) joint sessions in mediations (taking place between both parties and the mediators); and (ii) the breakout sessions or private caucuses (taking place between one of the parties and the mediators) are completely protected by “without prejudice” privilege. This means that statements made by any party and the documents shown are inadmissible evidence for the purpose of litigation or arbitration.
These safeguards of confidentiality and what is described in the common law world as “without prejudice” privilege (what you say will not prejudice you) also serve as levers to unlock open and candid communications between parties in a mediation to each other and to the mediator. Parties are therefore incentivized to be free, frank and full in their perspectives without fearing that such statements made could be used against them or come back to haunt them. This allows parties to move beyond the superficial communications into the deeper interests, needs and concerns when speaking to one another. This will allow for genuine communication about rather than posturing and pretence. Mediation is less concerned with rights and obligations of the parties but more concerned with interests and concerns of the parties.
To cite one example, one interest is a clean break with the other party from all contracts and relationships. Another illustrative interest is requesting an apology for a wrong. Courts in most jurisdictions do not order this and there is no statutory protection for saying sorry unless e.g. there is apology legislation like Hong Kong. In the context of mediation, this interest could be openly communicated and in turn set the stage for creative problem solving in the dispute. Using that example, an apology could go a long way towards expressing contrition, remorse and address the deeper need or concern of a party involved.
So, to sum up, open communication and candid exchanges between parties becomes easier, natural, genuine and certainly one of mediation’s secrets that can be unlocked powerfully.
This leads me logically to my next point. Catharsis/Expression which is an unusual point and one that you may not have heard about in a previous lecture.
Catharsis is a theory that suggests the venting of one’s anger is beneficial towards the improvement in one’s psychological state. The word Catharsis originated from the Greek word Katharsis which translates into cleansing or purging.
Commercial disputes may primarily involve two types of issues
- Substantive issues;
- Relationship issues.
Catharsis is especially relevant in the commercial disputes where relationships between parties have been strained, and relationship is the dominant issue between the parties. In Practical Commercial Mediation Issues by John Tyrril, published in Australian Construction Newsletter 1996. At page 39, Tyrril explains that mediators, as humans, tend to control the matter or conduct, and emotional outbursts are usually suppressed and not encouraged. However, this venting process is actually very important, and at times even essential to the capacity of the parties to move toward resolution. Tyrril suggests that the greatest progress in the dispute might actually be made during the periods where the mediation seems the most out of control.
The rationale for this is that there is a good reason for frustration, anger, annoyance and hatred. By letting it all out, it can actually be helpful in clearing the air, and at times could also assist parties to move on. As with all things, there must be a balance in allowing for this emotional outburst during mediation. In this regard, Tyrril makes it clear that venting may be helpful, but we must be mindful of 1) the extent, 2) the duration, and 3) the capacity of the other party to accept such behaviour. If the situation is not carefully managed, the emotional outburst may fall into the realm of toxic behaviour, which would be detrimental to reaching an amicable mediated agreement.
Mediation provides the platform that allows for parties to vent their grievances, with the goal of hopefully gaining overall relief from the strong and repressed emotions. In an article titled Introduction to Alternative Dispute Resolution: A Comparison Between Arbitration and Mediation written by Rhys Clift, the author states that there is no doubt mediation is an extremely effective way to settle commercial disputes, and one of his reasons is that Mediation can actually be seen as a “Substitute Day in Court”. In mediation, parties have this opportunity and space to do so freely, which can be cathartic and release the pent-up tension that would otherwise have precluded negotiations.
Finally, the importance of venting, and the benefits of having a catharsis, is echoed in the research project titled Getting Off to a Good Start: An empirical study of mediation’s early stages final report by Roselle L. Wissler & Art Hinshaw, published on 12 January 2021. In this research project, there were 1065 mediators who participated in the project. In this project, the author brings to light one of the attractive facets of mediation – Private Caucuses. In the project, the mediators were interviewed on things that were better achieved in initial caucuses. At page IX-30, the mediators who participated in the project suggests that some benefits of an initial caucus included the allowance for parties to individually work out frustrations prior to a joint session. At the same time, separate caucuses also allow the parties to have their cathartic moment without alienating the other side. Further, some mediators have highlighted that some of the disputes were almost always business related, and therefore the private caucuses were aimed to guide parties on transcending their emotions to reach an amicable business decision.
In essence, skilful mediators are attempting to separate the people from the problem, to guide them to a commercial business arrangement that is a fair business decision, rather than a decision heavily influenced by emotions. Additionally, we can see how this availability of a private caucus session for venting emotions to the mediator is exclusively present only in mediation and almost never seen in other forums for dispute resolution.
In conclusion, let us promote the power of mediation in (1) upholding longstanding Chinese cultural values nuanced to modern business and commercial realities, (2) the candid communications of deeper interests and concerns in a protected place of confidentiality and (3) allow the catharsis/expression which is natural for pent up emotion over the dispute in a safe space without that becoming toxic.
谢谢. Have a wonderful 2021 International Mediation Summit Forum.