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Shofar FTP Archive File: orgs/canadian/canada/justice/ethnocultural-groups/ecg-008-00


Archive/File: orgs/canadian/canada/justice/ethnocultural-groups/ecg-008-00
Last-Modified: 1997/01/29
Source: Department of Justice Canada



                                               CHAPTER EIGHT
                                ALTERNATE DISPUTE RESOLUTION
                                  IN A MULTICULTURAL SETTING

8.0 BACKGROUND

The study of clients' legal problems with multicultural
services agencies in the Vancouver area shows that problems
with administrative bureaucracies are very common.<223>
Recent research by the Institute for Dispute Resolution at
the University of Victoria on dispute resolution in
ethnocultural communities focusses on the same kinds of
problems, called "individual-institution" problems in the
study. Using a combination of individual and key informant
interviews, focus group consultations, and interviews with
representatives of service agencies, the study showed that
individual-institution problems were more common than family
disputes among Polish, Latin American and Chinese
groups.<224> While family disputes were more common among
the Vietnamese and South Asian samples,<225> disputes
between individuals and institutions were more common
overall.

8.1 Little Injustices

"Little injustices" may be viewed as small and insignificant
in the justice system, but may constitute major difficulties
in people's daily lives. Typically, they are the types of disputes with 
authority figures that may not be resolved and may be
a constant irritant in people's personal and family lives.
The state does not usually intervene unless the problems escalate 
to the point where the police may be called.

The University of Victoria report describes one scenario
where frustration because of language difficulties led to anger and 
shouting at administrative officials, and then the police were summoned. 
The formal justice system, however, cannot and should
not intervene in every dispute. Moreover, the culturally
unique aspects of some communities make intervention by the justice 
system difficult if not impossible.

8.2 ADR and Ethnocultural Communities

If the state becomes involved in a dispute, through either
the criminal or family courts, a familiar set of barriers to
accessibility comes into play. The justice system is widely
acknowledged to be complicated, expensive, and formalized.
These barriers to accessibility, which affect people
generally, are even more daunting for new Canadians with
cultural, psychological and language barriers. It might
appear on the surface that community-based alternative
dispute resolution strategies (ADR) are promising for
development in immigrant and ethnocultural minority
communities.

8.3 The Paradox of ADR in Some Ethnocultural Groups

While there seems to be a clear case emerging to promote ADR
as a way for the justice system to accommodate the
multicultural reality of Canada, the complexity that lies
beneath the surface of most social issues is revealed in the
University of Victoria study. The ADR and multiculturalism
issue exemplifies a central paradox. ADR is not perceived as
"the Canadian way" by people strongly oriented toward
adapting to Canadian life.<226> It should not be surprising
then, that given the preeminence of formal justice in
Canada, newcomers as well as nativeborn Canadians and long-
term residents, should recognize this situation as the
normal approach to administering justice.

At the same time, however, there is a reluctance to involve
outsiders, especially state officials, in disputes.<227>
People from five ethnocultural groupings interviewed in the
University of Victoria study did show a preference for
informal means of dispute resolution within the community.
This reflects a certain degree of cohesiveness within the
five communities studied, and a propensity to prefer
internal mechanisms for resolving disputes within each
community. This may reflect a desire to safeguard the
integrity of the group or family, to minimize risk, or to
save face.<228>

With respect to dispute resolution style, respondents
preferred to deal with intervenors familiar with the
disputants and who were empowered to recommend solutions. For
example, one Southeast Asian respondent commenting on a
failed dispute resolution dispute process in which he was one
of the parties said that, "the right people were not
involved." Such results in the University of Victoria study
suggest there may be considerable differences between the
mainstream models of mediation and other dispute resolution
techniques and those preferred by members of ethnocultural
groups who retain close ties with elements in their
traditional culture. Differences in preferences for different
approaches to dispute resolution in terms of generations,
length of residence, or measures of acculturation have not
been studied. This is an area where there is a dearth of
knowledge and where further research would be useful for
policy and program development.

There are two main types of disputes that are common and
seem to require some attention. Family disputes and disputes
between individuals and institutions must be dealt with in
very different ways.

8.4 Family Disputes

Respondents in the University of Victoria study expressed
considerable reluctance to involve outside agencies in
family disputes.<229> The report concludes that "services in
conflict resolution may be used more if targeted at
conflicts between individuals rather than domestic
disputes," and that "individual and institution-centred
conflict thus emerged as the most likely focus for a dispute
resolution pilot initiative."<230>

Research has shown that mediation can produce better
settlements than those achieved through the litigation
process in divorce and family matters.<231> Although some
respondents in the University of Victoria study reacted
unfavourably to the idea of ADR in family disputes, and
while it is generally understood that traditional values
about the family held by members of some ethnic groups can
produce an insular orientation to outside intervention, the
research generally suggests the issue should at least be
explored further.

In cases of family violence, there is a growing appreciation
of how victims of abuse are inhibited from accessing the
protection of the justice system.<232> The same types of
barriers to access_such as language barriers, fear of
approaching the justice system because of negative
experiences in countries of origin, absence of culturally
appropriate support services, fears rooted in misinformation
that leaving a husband will lead to deportation, or
misinformation on custody and access to children_may operate
with propensity to protect the integrity of the family to
inhibit use of family dispute resolution services. Barriers
to the use of family dispute resolution approaches should be
more fully explored before abandoning the field.

The feasibility of family dispute resolution in
ethnocultural communities remains an open question. An
option would be to explore the feasibility of family dispute
resolution processes, buttressed by a range of support
services such as safe houses. In this area, where
sensitivities to outside intervention are so high and where
the etiology problem may be rooted in factors which are
integral to the ethnic experience, the development of
community-based mechanisms is essential to carefully account
for those factors rooted in the culture and social order of
particular communities. Pilot projects designed to deal with
family disputes should be developed, with careful
developmental research, monitoring, and evaluation. As power
imbalances, particularly between domestic workers and
employers and between women and their husbands, may present
problems for the implementation of ADR techniques, these
issues must be considered carefully so as not to consolidate
abuse and victimization patterns in the very programs
intended as solutions.

It is probably important to locate family dispute resolution
within a related system of support services. For that
reason, developing family dispute resolution services as a
component of an integrated service delivery model, similar
to existing multicultural services agencies might be
advisable. The value of integrated service delivery models
was underscored in both the "Clients Study"<233> report and
the University of Victoria ADR report.

8.5 Disputes between Individuals and Bureaucratic Organizations

As the University of Victoria report suggests, the
development of ADR mechanisms to deal with disputes between
individuals and institutions is important.<234> Here, as
with family disputes, cultural sensitivity is a paramount
issue<235> and the resources of the ethnic communities are
essential to finding effective solutions. These disputes
however, are not internal to ethnic groups or families. They
are between bureaucracies, usually government agencies and
departments, and/or individual members of ethnic
communities.

This presents an excellent opportunity for governments to
demonstrate their commitment to the objectives of
multicultural policy_i.e., respect for diversity, fairness,
inclusiveness and treatment of people with dignity, or in
short, the foundations of access to justice. It also
presents a challenge for bureaucratic organizations to
develop flexible dispute resolution arrangements with a
variety of ethnocultural communities, respecting the
differences found both within and between groups.

The University of Victoria study indicates that problems
with dispute resolution services for the general public or
specific ethnocultural groups are limited in the Vancouver
area.<236> Presumably such problems exist elsewhere as well,
although there is no data to confirm this. Large
organizations have their own "nuances and norms for
behaviour," which may limit effective dispute resolution,
especially involving people from cultural backgrounds other
than those typical of well-educated, native-born, urban
people.<237>

Large bureaucracies, both public and private, could be
encouraged to put in place dispute resolution mechanisms
which are developed in close consultation with ethnocultural
communities and rely, to the extent possible and desired by
communities, on the resources existent in those communities
to resolve individualinstitutional disputes.

To deal with disputes between individuals and smaller
businesses where there may not be the resources to invest in
dispute resolution mechanisms, institutions providing dispute
resolution services to the public could be developed.
Existing bodies that provide dispute resolution services,
could be helped to expand their services so they could
provide more direct service or arrange it through
institutions in the community. Governments could facilitate
the process by promoting through "start-up" research and
development resources, the availability of culturally
sensitive ADR mechanisms in institutions which could provide
a central dispute resolution service to the public.

8.6 Concluding Observation

The attractiveness of alternative dispute resolution is that
it brings justice closer to communities. ADR mechanisms,
either court-annexed or communitybased, are able to draw
more effectively upon the strengths and resources of
communities than the formal justice system. The development
of ADR mechanisms might be used to pursue the broader
objective of forging linkages between the justice system and
ethnocultural communities. In theory, greater linkages
between the justice system and the community would diminish
the extent of alienation from, and fear of, the justice
system, and the reluctance to cooperate with, or seek the
protection of, the justice system.

At present, there are no convincing data to demonstrate the
effectiveness of alternative dispute resolution programs.
Action-oriented evaluation research could be carried out to
explore the effectiveness and impact of a range of
alternative dispute resolution techniques in Canadian
ethnocultural communities.


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