Archive for the ‘jose pascal da rocha’ Category

Guest Blogger 09- Jose Pascal da Rocha

November 18, 2009

Please enjoy the following submission as the fifth installment of the 2009 Guest Blogger series.
Today’s guest blogger is Jose Pascal da Rocha. Honestly, there is too much to say about Pascal I wouldn’t know where to begin. For example, ask where he has been and I think the answer is, “Yes, twice.” Like my other guest bloggers, I am happy to present his submission for everyone to enjoy. You can read more about him [here].
On Panethnicity and Communication Issues

As an international mediator, I get asked many times about cultural interferences in the mediation cases I experience. As I understand mediation as assisted negotiation, I would like to explore communication issues in mediating cultural conflicts in the context of the United States of America. This is all work-in-progress as there is still a need for a mediation model that would tackle cultural sensitivity in intergroup conflicts.

Intergroup community violence remains a vital point of interest for mediations and mediators. It can be argued with Lopez and Espiritu (Lopez, D./Espiritu, Y. (1990), “Panethnicity in the United States: A theoretical Framework” in: Ethnic and Racial Studies 13 (2): 198 – 224) that even though all the major white ethnic groups gave assimilated in some way, given the current climate that exists in the US, assimilation is not a possible way for people of color. By assimilation, Lopez and Espiritu do not mean Anglo-conformity (and uni-lingual behaviors). Instead, they suggest that assimilation means complete access to political, social and economic power. Lopez and Espiritu argue that “the question of ethnicity in the US is increasingly a question of race. Recent and probably most future immigration will be dominated by non-whites. It is important to emphasize that no non-white group has ever fully assimilated into American society” (p.220). On the other side, ethnic differentiation and pluralism represent the opposing pole of the interethnic continuum (Feagin, C. (1991), “The Continuing Significance of Race: Antiblack discrimination in public places” in: Communication Monographs 51: 23-36). The term Panethnicity is defined as “the development of bridging organizations and solidarities among subgroups of ethnic collectivities” (Lopez and Espiritu, 1990, p. 198).

The documented development of panethnic liaisons among people of color has been prompted by ethnic and racial violence over the decades. In the context of this environment, people of color have tended to develop their own subcultures. The insightful analysis suggests that future mechanisms for resolving intergroup conflicts will emanate from coalitions of people of color. In the short term, intergroup hostility and tensions between members of the majority and people of color pose some real problems for community mediation. The literature reveals that recurrent themes for the tension between dominant and sub-dominant groups include social inequality, economic exploitation of people of color, and the roles of class structure and law in the maintenance of racial and ethnic inequality. By understanding sources of intergroup conflict, mediators gain essential background information needed to manage this kind of conflict. However, there are major obstacles, notably in the form of resistance to third-party intervention. For example, an important challenge to cooperative problem-solving among interracial groups can be found in the mistrust that minorities tend to have of institutional representatives in general, and the police in particular. So, the overall question in this context is: How should third parties adopt an intervention posture that can address the cultural needs of disputants?

Variant Concept of Conflict
It is necessary to understand how various cultures deal with conflict. Western-style cultures document that individuals tend to view conflict as a healthy catharsis for anxiety as well as a positive mechanism for invigorating moribund relationships. The rules of fair play require that if you have a quarrel with someone, explanations are mandated. It is honest to be open about resentment and to attempt to resolve disputes. In Easter-style cultures, conflict-avoidance is the norm. Part of one’s personal goodness is measured by how well conflict is avoided and how adeptly the feelings of others are spared. Apart from other well documented differences about conflict styles, an alternate conflict resolution style is illustrated in a study on third-party intervention in the Peoples’ Republic of China. Wall and Blum (Wall, James A./Blum, Michael (1991), Communication in the People’s Republic of China” in: Journal of Conflict Resolution 35 (1): 3-20) identify that Chinese mediators are known to both the community and the disputants. No one expects the mediation to be neutral. Mediation is mandated by the court. Before a case can go to court, the disputants must attempt mediation. Mediators tend to be older, trusted members of the community, and generally women. A critical part of the intervention is the apology. Wall and Blum observe that “Mediation to westerners is a social aberration. … For Chinese, mediation is integrated within their society” (p.19).

In the US-context, mediation is assessed as resulting in improved relationships between dysfunctional conflictants. Typically, mediators see themselves as the process leaders of a structured process, ending the process with a formal agreement. This might not work for Korean-Americans. La Resche (La Resche, D. (1992): “Comparison of the American Mediation Process with a Korean-American Harmony Restoration Process”, in: Mediation Quarterly 9 (4): 323-339) indicates that they tend to see conflict as a shameful inability to maintain harmonious relationships with others. For them, conflicts are not just problems in communication, but indicative of a lack of respect. La Resche (1992) advises that if conflicts in multiethnic communities are to be handled effectively, third parties must, at a minimum, become knowledgeable about different conflict values and forums so that their response is flexible and appropriate when persons different from themselves request assistance. Mandatory mediation programs might face this very issue. Should these programs coerce people into a process that violates their cultural and ethnic values or embarrasses them? A deeper understanding of diversity is called for that goes beyond the customs that are readily manifested.

Cultural Empathy
When culturally diverse parties are part of a third party intervention, mediators might assume that they need to examine their own assumptions about the nature of the conflict and how the disputants need to be approached. This perspective is consistent with the education of most mediators, aimed at remaining sensitive to disputants’ needs. In cross-cultural conflict, an appropriate course of action for mediators is not to see themselves as settlement-driven experts, but as students eager to learn about the tensions between the disputants’ underlying notions, motives and the surface of the conflict. Furthermore, it is likely that usual strategies for eliciting discussion and for engendering cooperation may fall short in such a mediation. In addition, the ethnicity and gender of the mediator plays a significant role in the conflict. More often than not, a legacy of unfair treatment has socialized racial and ethnic minority disputants to expect failure in every interaction with dominant group mediator. Powerlessness is defined as the feeling that one is “controlled, manipulated, and trapped” (Hecht M., Larky L.K., and Johnson, J.N. (1992): “African American and European American Perceptions of Problematic Issues in Interethnic Communication Effectiveness” in: Human Communication Research 19 (2): 209-236, p. 215). Mediators should be aware that their relationships with these disputants are much more complex than they might initially seem. In many cases, the court-appointed mediator is clearly a gatekeeper for institutional power. Donohue (Donohue, W. (1991): Communication, Marital Dispute and Divorce Mediation. Hillsdale, N.J: Lawrence Erlbaum) already noted that “this official, court-connected status gives mediators considerable power because they are inside the system that will ultimately decide the outcome” (p.7).

A Model for Understanding Cultural Differences
First of, a definition for culture that is sensitive to conflict has to be established. Nadler et al. (Nadler, L./Nadler, M./Broome, B. (1985): „Culture and the management of conflict situations“. In: Gudykunst, W./Stewart, L./Ting-Toomey, Stella (Hrsg.): Communication, Culture and Organizational Processes. Beverly Hills, C.A.: Sage: 87-113.) define culture as “the system of socially created and learned standards for perceiving and acting, shared by members of an identity group” (p.89). The key to this definition is its focus on identity groups. These groups set the standard for determining what counts as acceptable or unacceptable, cooperative or uncooperative communications. Whenever outsiders lack access to these standards, they risk miscommunication and expanded relational distance. Further, Nadler et al. (1985) contend that culture impacts conflict in three ways: how it is conceived, how it is conducted, and how it is resolved. This conceptualization is particularly useful because it emphasizes that culture affects the way in which people interpret differences, how they communicate to manage those differences, and how they create options for resolving those differences. Apart from Geert Hofstede’s (Hofstede, Geert (1989): „Measurement of individualism-collectivism.“ In: Journal of Research in Personality, 22: 17-36) well-known model of Cultural Differences, involving notions of Power-Distance, Uncertainty, Individualism, and Masculinity, mediation models bear some interesting potentials. Hofstede’s method of differentiating cultures is useful for mediators because it provides a language for understanding cultural biases in the various kinds of models mediators use to assist disputants. Three mediation models have interesting interactions with Hofstede’s method.

A first model is the mediation control model, or “med-arb model” (McGillicuddy, N. B./Welton, G. L./Pruitt, D. G. (1987): „Third-party intervention: A field experiment comparing three different models.“ In: Journal of Personality and Social Psychology 53: 104-112). In this model, mediators can become arbitrators if they believe that the parties have deadlocked and remain unable to create an agreement on their own. This model exhibits some interesting cultural biases based on Hofstede’s dimensions. First, people from high power-distance cultures might prefer this model because it takes a fairly autocratic approach to mediation, at least when it turns to arbitration. In fact, they would probably prefer that the mediator turn more quickly, rather than less quickly, to arbitration, particularly because they value conflict avoidance. People from high-power distance cultures look to a centralized authority to make a decision (e.g. Russia). Second, the mediator control model offers both comforting and troubling features to people from high uncertainty avoidant cultures. The troubling feature is that disputants are required to control agreements. This lack of structure, and the need to remain flexible in building creative solutions, creates a great deal of uncertainty about both the mediation process and outcome options.

Arbitration offers more structure about how outcomes will be determined and thus might prove more attractive to people who despise uncertainty. On the other hand, mediation might offer a comforting aspect to people from high uncertainty-avoidant cultures. Uncertainty about the process leades to uncertainty about the effects of the dispute on the relationship. Third, the mediator control model conforms to valued features of collectivist cultural orientation (such as China, Korea, South-Africa in parts). Fourth, the mediator control model’s emphasis on achieving task objectives suggests more of a masculine cultural priority. Feminine orientations value more expressive tasks. Yet, any mediation process aims at achieving the more feminine virtues of building a nurturing, affiliative, helpful communication context. But, the emphasis on solving the problem, particularly when the disputants know that the mediator can arbitrate or force a solution when deadlock appears likely, suggests the mediation control model to be more masculine oriented. The mediator can address these cultural issues from a number of perspectives, most of which involves more time listening to disputants’ concerns and perspectives.

Another model is the interventionist model. It emphasizes a fairly powerful mediation role. Developed mostly for divorce mediation, this model assumes responsibility for the best interests of parties not represented in the conflict. As a result, the mediator evaluates the disputants’ options, creates appropriate options, and otherwise ‘moves’ parties into the “right” direction. There is no option to chose arbitration in a moment of deadlock. Yet, the mediator exercises a great deal of control over the process and must guard against developing an adversarial role with disputants. In regards to cross-cultural concerns, the mediator must ensure a full understanding of the mediator’s role and a full hearing of the issues dividing the parties.

In the Disputant control model, mediators try to facilitate an agreement between the disputants that they control. Unlike the mediator control model, the mediator has no option for arbitration in the event of a deadlock. And, in contrast with the aforementioned interventionist model, the mediator has no interest in protecting anyone potentially affected with the outcome. The mediator simply helps the parties create whatever agreement they feel is appropriate. This model is used frequently in community settings, such as neighbor disputes, in which the agreement only bears on those parties with few others affected. The mediator remains less autocratic in controlling outcome. This model still places parties in a context that promotes uncertainty because divisive issues are addressed openly and parties with a conflict-avoidant behavior might find this discomforting.
The Relational development model focuses less on a specific task and more on addressing such relational problems such as trust, control, and affiliation. Typically, mediators use this model as a preliminary step in support of some other mediation model that seeks to resolve nonrelational issues. The mediator in this model seeks open communication between the parties to explore the relational divisions and how parties might put them aside to focus on legal issues, for instance. Relational mediation ends when the disputants feel that further progress is no longer possible. This model is likely to reduce power distance between the mediator and disputants. Parties seeking to communicate under these kinds of authoritative conditions should find this model the least satisfying. Typically, mediators exercise little process or outcome control. But, because it does not promote discussion, however, parties cannot easily avoid conflict. Compared to the other aforementioned models, this model concentrates more on a collectivist orientation because it looks to maintain group relations as a first priority. By promoting relational development, this model also supports many of the feminine qualities of being affiliative, nurturing, helpful, and expressive.

Mediating intergroup conflicts will become more challenging as we approach the next century and the US becomes more ethnically, and thus relationally, complex. New immigration since 1965 has both facilitated and hindered the development of panethnic consciousness. Mediators must remain current on issues of changing cultural diversity to function effectively. For example, mediators can make a judgment about the degree of stakeholding for disputants based on several criteria. Is the culturally different disputant a temporary sojourner or a permanent stakeholder? Is the relationship between the disputants temporary or long term? What do both parties have to gain and to lose in the mediation? How critical is face-saving to disputants participating in mediation? The conflict-avoidant party will be likely to clam up and secretly decide not to comply with the settlement. Mediators should be wary that silence is not an agreement. If parties refuse to participate, a possible strategy might be to slow down the process and caucus separately with both parties to learn their positions. In all cases, the mediator must remain especially observant and attentive to individual needs, without falling into the “cultural trap”. Finally, mediators express cultural empathy by carefully assessing their own intervention values to see whether they are appropriate for this conflictant and for this context of mediation.

About the author:
José Pascal da Rocha is a Professor and International Mediator. He is teaching at Columbia University, M.Sc. in Negotiation and Conflict Resolution and the Southern Federal University of Rostov in Russia. Furthermore, he is active as a negotiator in diverse type of environments, from Corporations to Conflict zones across the world. He has published on mediation and gender and diversity. He can be reached at and

’09 All Star Guest Bloggers

August 27, 2009

There are many brilliant ADR professionals out there (much more brilliant than me) that for one reason or another, they do not write as much as they should or blog.

A few months ago I had the idea to reach out to some of these all-stars and ask them if they were interested in being part of my 2009 roster of all-star guest bloggers. I can happily say two things:

1) I am honored that each person I asked agreed!

2) I think all the readers will be just as happy as me to be able to read unedited writings from some of the most brilliant people in the ADR field.

The postings will be on the following dates:

September 23rd D.A. Graham [read]

October 7th Jessica Carter [read]

October 21st Noam Ebner [read]

November 4th Alex Yaroslavsky [read]

November 18th Jose Pascal Da Rocha [read]

December Colm Branningan

Listed Alphabetically

Colm Brannigan

After undergraduate and graduate studies in history, Colm received his LL.B. from Queen’s University in 1981 and an LL.M. in Alternative Dispute Resolution (ADR) from Osgoode Hall Law School of York University in 2003.

He holds the designation of Chartered Mediator (C. Med.) from the ADR Institute of Canada and is a Certified Mediator through the International Mediation Institute in the Netherlands.

A former litigation lawyer, Colm has been a full-time mediator since 1999 with a wide range of experience in condominium, commercial, technology, employment, estates and family disputes.

In addition to practice, and writing articles and book reviews on ADR and ODR topics, Colm has been a participant and speaker in various dispute resolution and professional development programs and is a part-time instructor in law at Humber College Institute of Technology & Advanced Learning in Toronto.

Colm is a board member of the ADR Institute of Ontario, co-chair of its technology section and co-editor of its newsletter. He also a member of various other professional organizations including the Ontario Bar Association – ADR Section and the Section of Dispute Resolution of the American Bar Association. He is the founder/moderator of “Mediate-Canada” an ADR listserv hosted by Google Groups.

Jessica Carter

Jessica Carter is Senior Advisor Mediation Practice at the Department of Building and Housing in New Zealand and a practising mediator. She is responsible for developing and monitoring standards of mediation practice, building and implementing mediation training programs, and advising on new mediation initiatives and developments for a large mediation team in New Zealand’s public sector.

Jessica is active in mediation, conflict management, negotiation, coaching, delivering training and dispute system design. She is a member of the Australian and New Zealand LEADR Panel of mediators, the Asia-Pacific Mediation Forum, the Association for Conflict Resolution (ACR), the American Bar Association Section of Dispute Resolution and delivered a Paper on raising mediator quality in New Zealand’s public service at the 2009 Conference in New York. Jessica has completed mediation and negotiation programs at Harvard Law School, a Master of Dispute Resolution in UWS School of Law in Sydney, and attended the International Ombudsman Association program for mediators at the United Nations Office, Geneva.

Jose Pascal Da Rocha

José Pascal da Rocha, JD, is a freelance mediator. He has developed his practice in international mediation.. His practice reaches from resolving humanitarian conflicts in Africa, commercial dispute resolution in the United Arab Emirates to the project management of a center for conflict resolution in Southern Russia. He teaches mediation at several universities, such as the Columbia University, New York, the Southern Federal University of Rostov, Russia and Military Academies of NATO forces. He has published on international mediation as well as diversity management, critical thinking and reflection.

Noam Ebner

Noam Ebner is a negotiation consultant and trainer, an attorney and a mediator. He divides his time between his home and office in Jerusalem and his teaching, training and consulting activities abroad.

He manages Tachlit Mediation and Training, which deals with a wide spectrum of disputes, ranging from business partnership dissolving to employment disputes and divorce mediation.

Noam has been on the faculty of Sabanci University since 2003, teaching the practical aspects of negotiation and mediation in the Graduate Program on Conflict Analysis and Resolution in the Faculty of Arts and Social Sciences.

Noam is a Senior Fellow at the United Nations’ University for Peace in Costa Rica ( and teaches in the Werner Institute’s Graduate Program on Negotiation and Dispute Resolution at Creighton University’s School of Law (

D.A. Graham

D. A. Graham is the University Ombudsman at Princeton University.

Before arriving at Princeton University, D. A. was the Student Ombudsman at San Diego State University for two years. Prior to that, he served as a U.S. Navy Chaplain participating in Operation Iraqi Freedom. In 2001 D. A. received the Military Chaplain’s Association Chaplain of the Year Award for service with the U.S. Marine Corps. He is a graduate of the University of Alabama, where he earned B. A. degree in Speech Communication in 1990 and was the Founding President of the Alabama Student Society of Communication Arts (ASSCA). He also was selected as the first Student Ombudsman for the University of Alabama in 1994. D. A. attended the Interdenominational Theological Center in Atlanta, GA, where he received his Master of Divinity degree in 1998. During this time he served as a Resident Director at Morehouse College where he received the Student Advisor of the Year Award. While stationed in Okinawa, Japan he received his Master of Human Relations degree from the University of Oklahoma in 2002 with a specialization in Mediation/Negotiation. D. A. is a member of The International Ombudsman Association (IOA), The Association for Conflict Resolution (ACR-GNY) and The American Society for Training & Development (ASTD)

Alex Yaroslavsky

Alex Yaroslavsky, NCM is the founder of Yaro Group, LLC – a dispute resolution consultancy specializing in workplace conflict resolution. Yaro Group’s services include executive coaching, training, facilitation, communication process analysis and electronic brainstorming.
Since 2000 Alex has been working with major clients in the financial services industry, including Citigroup, HSBC, Merrill Lynch, U.S. Trust and WestLB AG. His experience includes resolving commercial, organizational and cross-cultural disputes.

Alex teaches Dispute Resolution at the John Jay College of Criminal Justice and is a mediator with New York City’s Civilian Complaint Review Board. He is also a member of the FINRA and the New York County Lawyers’ Association mediation and arbitration panels. Alex was one of the first mediators to become certified by the New York State Dispute Resolution Association in 2009.