Dignity and Culture in Dispute Resolution

Lola Akin Ojelabi

Abstract


This paper adopts a definition of human dignity that highlights the importance of recognition and respect. These two concepts are important in dispute resolution processes particularly where cultural differences exist between parties or between a party and the third-party decision-maker or dispute resolution practitioner. Although cultural differences are not in themselves causes of conflict and should indeed be celebrated, because culture and identity are intricately linked, cultural differences negatively influence disputes and lead to intractability. Cultural differences may also affect a dispute resolution process and its outcome particularly in relation to parties' engagement in, and perception of, the process. To prevent negative implications of cultural differences, dignity in form of respect and recognition is important. These two concepts may also form the basis of procedural justice which when present, enhances satisfaction in a decision-making process by giving effect to voice. This paper explores how cultural differences may diminish voice quality and how respect and recognition may lead to empowerment thus improving the quality of voice and in turn, both process and outcome. It discusses the elements of respect and recognition steps that may be taken by third-parties to accord dignity to parties.


Full Text:

PDF

References


ARTICLES/BOOKS/REPORTS

Access to Justice Taskforce, A strategic framework for access to justice in the federal civil justice system, Attorney-General’s Department, Australian Government, Canberra (Report 2009)

Akin Ojelabi, Lola ‘Values and the Resolution of Cross-Cultural Conflicts’, (2010) 22 Global Change, Peace and Security 53

Akin Ojelabi, Lola (2014) 30 ‘Dispute Resolution and the Demonisation of Culture’ Australasian Dispute Resolution Journal 30

Akin Ojelabi, Lola ‘An access to justice approach to mediation and the construction of positive legal professional identity’ (2016) 23(3) International Journal of the Legal Profession 321

Akin Ojelabi, Lola, ‘Exploring Voice as a Justice Factor in Mediation’, (2019) 38 Civil Justice Quarterly 459

Alternative Dispute Resolution Advisory Council, ‘Dispute Resolution Terms: The Use of Terms in (Alternative) Dispute Resolution’, (September, 2003)

Avruch, Kevin, ‘Type I and Type II Errors in Culturally Sensitive Conflict Resolution Practice’ (2003) 20 (3) Conflict Resolution Quarterly 351

Avruch, Kevin, Context and Pretext in Conflict Resolution: Culture, Identity, Power and Practice (Paradigm Publishers, 2013) 11

Bell Catherine and Kahane, David (eds), Intercultural Dispute Resolution in Aboriginal Contexts (UBC Press, 2004)

Black, Peter and Avruch, Kevin ‘Cultural Relativism, Conflict Resolution and Social Justice’ Online Paper at http://www.gmu.edu/academic/pcs/BlackAvruch61PCS.html accessed 23/2/2006

Brigg, Morgan and Muller, Kate, ‘Conceptualising Culture in Conflict Resolution’ (2009) 30 (2) Journal of Intercultural Studies 121

Cappelletti, Mauro and Garth, Bryant (eds) Access to Justice: A World Survey (Sitjhoff and Noordhoff, 1978)

Debes, Remy (ed), Dignity: A History (Oxford University Press, 2017)

Delgado, Richard, Dunn, Chris, Brown, Pamela Brown, Helena Lee, and David Hubert, ‘Fairness and Formality: Minimizing the Risk of prejudice in ADR’ (1985) Wisconsin Law Review 1359

Folger, Joseph, Rosenfield, David, Grove, Janet and Corkran, Louise, ‘Effects of “Voice” and Peer Opinions on Responses to Inequity’ (1979) 37 (12) Journal of Personality and Social Psychology 2253

Geertz, Clifford, The Interpretation of Cultures: Selected Essays (Basic Books, 1973)

Gunning, Isabelle R, ‘Diversity Issues in Mediation: Controlling the Impact of Negative Cultural Myths’ (1995) 1 Journal of Dispute Resolution 55

Howieson, Jill, ‘Perceptions of Procedural Justice and Legitimacy in Local Court Mediation’ (2002) 9 (2) iMurdoch University Electronic Journal of Law, http://www.austlii.edu.au/au/journals/MurUEJL/2002/13.html

Izumi, Carol, ‘Implicit Bias and the Illusion of Mediator Neutrality’ (2010) 34 Washington University Journal of Law & Policy 71

Jacobson, Nora, ‘Dignity and Health: A Review’, (2007) 64 Social Science and Medicine 292

Kant, Immanuel, Groundwork for the Metaphysics of Morals (1785)

Kroeber, Alfred L and Kluckhohn Clyde, Culture: A Critical Review of Concepts and Definitions (Vintage Books, Random House, 1952)

Lind, Allan and Tyler, Tom R, The Social Psychology of Procedural Justice (Plenum Press, 1988)

Michael, Lucy, ‘Defining Dignity and Its Place in Human Rights’, (2014) 20(1) The New Bioethics 12

Mayer, Bernard, The Dynamics of Conflict resolution: A Practitioner’s Guide (Jossey-Bass Inc, 2000)

Nader, Laura, Culture and Dignity: Dialogues between the Middle East and the West (John Wiley and Sons Incorporated, 2013)

Neal, Mary ‘Respect for Human Dignity as ‘Substantive Basic Norm’’ (2014) 10 International Journal of Law in Context 26

Noone, Mary Anne and Akin Ojelabi, Lola, ‘Ensuring Access to Justice within the Civil Justice System’, (2014) 40 (2) Monash University Law Review 529

O’Connell, Rory ‘The Role of Dignity in Equality Law: Lessons from Canada and South Africa’ (2008) 6, International Journal of Constitutional Law 267

Parker, Christine, Just Lawyers; Regulation and Access to Justice (Oxford University Press, 1999)

Rao, Neomi, ‘Three Conceptions of Dignity in Constitutional Law’, (2011) 86 Notre Dame Law Review 183

Sandefur, Rebecca L , ‘Access to Civil Justice and Race, Class and Gender Inequality’ (2008) 34 Annual Review of Sociology 339

SDG Knowledge Hub: ‘Equal Access to Civil Justice for All: How Will We Know When We Get There?’ available at http://sdg.iisd.org/commentary/17guest-articles/equal-access-to-civil-justice-for-all-how-will-we-know-when-we-get-there/ .

Schachter, Oscar ‘Human Dignity as a Normative Concept’ Editorial Comment, (1983) 77 The American Journal of International Law 848

Shultziner, Doron ‘Human Dignity in Judicial Decisions: Principles of Application and the Rule of Law, (2017) 25 Cardozo Journal of International and Comparative Law, 435

Taylor, Charles, ‘The Politics of Recognition’ in Amy Gutman (ed), Multiculturalism: Examining the Politics of Recognition, Part One (Princeton University Press, 1994).

Thibaut, John and Walker, Laurens, Procedural Justice: A Psychological Analysis (Lawrence Erlbaum Associates, Publishers, 1975).

The MetroCourt Project Final Report, A Study of the Effects of Ethnicity and Gender in Mediated and Adjudicated Small Claim Cases at the Metropolitan Court Mediation Center, Bernalillo County, Albuquerqe, New Mexico: Cases Mediated or Adjudicated September 1990 – October 1991, January 1993.

Ury, William, Fisher, Roger and Patton, Bruce, Getting to Yes: Negotiating an Agreement Without Giving In (Random House Business Books, 2012)

Waldman, Ellen, Mediation Ethics: Cases and Commentaries (Jossey-Bass, 2011).

Zartman, William(ed), Traditional Cures for Modern Conflicts: African Conflict “Medicine”, (SAIS African Studies Library, 1999)

OTHER

National Mediator Accreditation System (NMAS), Practice Standards, July 2015.

United Nations Sustainable Development Goals at https://www.un.org/sustainabledevelopment/peace-justice/ accessed May 2019.

United Nations, Peace, Justice, and Strong Institutions: why they matter. Available at https://www.un.org/sustainabledevelopment/wp-content/uploads/2017/01/16-00055p_Why_it_Matters_Goal16_Peace_new_text_Oct26.pdf accessed March 2019.