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  • December 16, 2020

    Mediators & Attorneys: 7 Tips on Practicing with Cultural Humility

    Effective representation – whether a mediator or lawyer – requires understanding not just the parties’ points of view, but how your own biases may impact the process. Lisa Derr offers seven tips for mediators to improve their cultural awareness.

    Lisa L. Derr

    For most of my practice, cultural competence involved facilitating cultural differences between the parties. But we must also consider how mediators ourselves contribute to conflict because of an unwillingness or incapacity to examine our own biases.

    Starting with ourselves is the first step to cultural competence.

    It’s Not a Goal – It’s Lifelong Process

    Cultural competence sounds like an achievable goal (e.g., completing driver’s exam or passing a class in cultural differences). However, according to Melanie Tervalon and Jann Murray-García, it is not so much an event as active engagement in the lifelong process of self-reflection and critique. In that process, we not only learn about another’s culture, but also start by examining our own beliefs and cultural identities.1

    Understand Cultural Humility

    Tervalon and Murray-García discussed this ongoing process of learning in the context of physician training outcomes. They found that doctors needed to identify and examine their “own patterns of unintentional and intentional racism, classism, and homophobia.” Continually self-critiquing and reflecting is best described as “cultural humility.”2

    Lisa L. Derr Lisa Derr , U.W. 1987, is a partner with Derr & Villarreal in Beaver Dam, where she concentrates her practice in family law and workplace mediation.

    In 2009, T. A. A. Portman3 examined self-reflection with school counselors for the purpose of mediating culture between students because of the continued diversification of society and public school enrollments. He states that “the future must intentionally build on the past.” Future success depends on “building a bridge from present focus on awareness, knowledge and skills” to apply those skills which will lead “to academic, person/social and career success of culturally diverse students.” Further, school counselors were the engineers to successfully negotiate that bridge.4

    According to Portman, school counselors face an enormous responsibility in varied situations. Some of the main tasks include:

    • developing awareness of cultural backgrounds and communicating with students, parents, teachers, and staff;

    • seeking further education in cultural competence and linguistic skills;

    • thinking “outside the box” to positively affect ongoing social construction of themselves;

    • helping culturally diverse students develop social mediation skills; and

    • creating a supportive and encouraging culturally diverse school and community climate.5

    Multicultural competence has also been studied in the context of supervisor/supervisory working alliances that improved with cultural competence.6

    Examine Our Own Cultural Beliefs

    We are unable to respect differences of which we are unaware. It is hard to consciously analyze our own assumptions and unspoken rules about what is (and is not) socially acceptable.

    In pre-screening clients as well as during sessions, we should take a few moments to examine how we feel. Have our own assumptions been triggered? Why?

    By examining them, we can acknowledge that our social norm may not be accurate for them. Just as difficult, we must learn to readily accept those differences.

    Increase Cultural Competence Outside of Mediation

    We need to engage and build relationships with the people around us who are different. We need to make eye contact, smile, and say “hello.” When we begin to ask questions with caring curiosity, people will believe us and respond.

    We should challenge ourselves to learn more. We can take cultural diversity and inclusion/cultural competence classes. There are numerous courses online, although most are not free. Microsoft has a free training on Unconscious Bias, but note that it is only for personal use. The State Bar of Wisconsin offers a changing selection of CLE seminars on diversity-related topics.

    Learning from Clients

    Few attorneys suffer from a lack of confidence. Consequently, we do not always appreciate the tremendous power that we have over clients.

    We cannot learn from a client without first acknowledging that we know almost nothing about this person. Humility is essential. We can learn from clients by:

    • correctly pronounce names;

    • listening to how they refer to themselves including pronouns beyond “he” or “she.” This includes “they” as a singular pronoun;

    • asking people how they wish to be addressed;

    • observing body language, gestures, and other nonverbal communications;

    • engaging clients with a less authoritarian style;

    • putting away our linear checklists, instead asking open-ended questions to get more information;

    • letting them tell their story – even if it is not legally relevant;

    • imagining their experience, just the way they have described it; and

    • accepting that their experience is different from what we might have assumed.

    Last, we must understand that we will never fully know the intersection of cultures that each client brings.

    This is important when we have had significant training and begin to assume too much. As Tervalon and Murray-García state, “the equating of cultural competence with simply having completed a past series of training sessions is an inadequate and potentially harmful model of professional development.”7

    Listen to Clients

    An example: If your client is a Mexican-American Catholic grandmother, she is the only one who can help us understand how the intersection of ethnicity, religion, age, and gender has shaped her. Trying to better understand her beliefs and experiences will affect how she communicates with us, trusts us, and how she engages with the court system. In the end, trying to understand her background will produce better legal outcomes.

    Assess Your Own Attitudes and Biases

    Even without significant errors, failing to self-reflect can prevent your best possible mediation.

    When I approached my first transgender mediation, I did not understand that cultural competence requires examining my own unconscious assumptions. The husband in the case was a now a transgender woman. While I had the best of intentions, my goal was merely to minimize errors. I practiced referring to her current name and double-checked pronouns in the legal documents for accuracy.

    But I never reflected on my own upbringing and how my emotions might affect the mediation. Such reflection would have allowed me to provide a better mediation experience.

    We must remain wary. We will not “achieve” cultural competence by attending a certain number of trainings. There is no graduation. As Tervalon and Murray-García state, “there must be a simultaneous process of self-reflection (realistic and ongoing self-appraisal) and commitment.”8

    Ironically, after undertaking significant training – and we feel competent and assured that we understand this person’s culture – we have less cultural humility and therefore, demonstrate less cultural competence. It is learning, listening, accepting, and modestly adjusting throughout our lives.

    Our society’s view of a competent professional is one who has all the answers – “the sage on the stage.” It is no small task to yield the floor to listen and learn from our clients.

    But that is what it takes to practice with cultural humility.

    This article was originally published on the State Bar of Wisconsin’s Dispute Resolution Blog. Visit the State Bar sections or the Dispute Resolution Section webpage to learn more about the benefits of section membership.


    1 See Melanie Tervalon and Jann Murray-García, Cultural humility versus cultural competence: a critical distinction in defining physician training outcomes in multicultural education, Journal of Health Care for the Poor and Underserved, May 1998, p. 118.

    2 Tervalon and Murray-García, pp. 117-118.

    3 Tarrell Awe Agahe Portman, Faces of the future: School counselors as cultural mediators, Journal of Counseling and Development, Winter 2009.

    4 Portman, pp. 22-23.

    5 Portman, p. 23, emphasis added.

    6 See Stephanie Crockett and Danica G. Hayes, The Influence of Supervisor Multicultural Competence on the Supervisory Working Alliance, Supervisee Counseling Self‐Efficacy, and Supervisee Satisfaction With Supervision: A Mediation Model, Journal of Counselor Education and Supervision, December 2015.

    7 Tervalon and Murray-Garcia, p. 119.

    8 Id.

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    Dispute Resolution Section Blog is published by the State Bar of Wisconsin; blog posts are written by section members. To contribute to this blog, contact Lisa Derr and review Author Submission Guidelines. Learn more about the Dispute Resolution Section or become a member.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

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