Special Issues in Multi-cultural Mediation
April 11, 1873, was a mild day on the lava plain near Lost River, California. That morning, Captain Jack, leader of the Modoc tribe, and other tribal representatives, met with Major General Edward Canby, and other members of a “peace commission” appointed by the Dept. of Indian Affairs. The purpose of the meeting was another negotiation session to discuss re-settlement of the Modoc tribe, about 200 people including approximately 60 warriors and 140 women and children. There had been months of meetings, and the Modocs had tried to settle under Government orders on the reservation of their traditional enemies, the Klamath Indians, just to the north over the Oregon border. The outcome had not been pretty, the Modocs moved south into the badlands of what is now Lava Beds National Monument. With armed conflict smoldering, negotiations were proceeding.
At this meeting, the Modoc leaders repeated their request that they be allowed to select the area where they were to settle as their reservation. Canby, with some personal frustration, replied that he had no authority to agree to anything to bind the US Government. Gunfire ensued, General Canby and another peace commissioner were killed, and another was seriously wounded but survived.
The consequences were catastrophic, on several levels, for both sides. Over about the next year and a half, the US Army basically laid siege to the lava caves where the Modocs took refuge. Captain Jack and five other leaders were eventually captured, tried by military tribunal at Fort Klamath, and convicted of murder. Four, including Captain Jack, were hanged. Their marked graves can be seen at Fort Klamath today. In Lava Beds National Park, a large wooden cross marks the spot where the peace commissioners were killed.
In the course of the Modoc War, the US Army deployed in the field between 400–530 troops at a time, including infantry, cavalry and artillery. They suffered 73 dead. The Modocs had at most 53 warriors, and suffered 17 killed. The war cost the US $400,000 in 1873 dollars, relatively speaking a hugely expensive effort. The land the Modocs requested for their reservation could have been purchased for $20,000.
The killings prompted a sea-change on the part of white America, away from the so-called “peace policy” of President Ulysses S. Grant, and inflamed further racist tension, reinvigorating a narrative of innocent, peaceful white American settlers as victims of savage violence by uncivilized Indians. The Modocs who survived the war were forcibly removed to a reservation in Oklahoma, where many died of disease and bad weather.
Pondering these tragic events, one can’t help but think, if only some agreement could have been reached. . . what suffering could have been avoided.
In the recent past, considerable thought has informed the approach to multi-cultural issues in dispute resolution. Probably up until the 1990s, ADR in the West ran on the assumption that there would be shared “cultural” norms informing the discussion. That is, that discussions would be based on shared values and norms, and even before that stage, shared definitions and understandings of “dispute” and goals. For example, it was assumed that everyone saw dispute resolution in terms of seeking win-win agreement that would satisfy the interests of both sides. Since that time, further thought and study have led to the insight, for example, that in some cultures the purpose is not to find a “bargain” or work out issues, but rather is to seek reconciliation.
One approach that has been suggested, is to have multi-cultural teams of mediators facilitate the discussion. On the other hand, some scholars have called into question the notion of simplistic “matching” of mediators and parties from similar cultural backgrounds. Some question whether there are situations so fraught with controversy and with so little common ground, that mediation is essentially not viable.
Attempts have been made to distill checklists of cultural factors that mediators are trained to be aware of, for example, differences in responses to close questioning, power centers, gender issues, and uncertainty avoidance. Some cultures essentially question the foundational notion of “neutrality” on the part of the mediator/facilitator. Some academic authorities continue to question whether there is yet a viable paradigm for multi-cultural dispute resolution, beyond superficial and simplistic templates.
Culture is a complex, always-changing phenomenon, and of course the individuals from a particular culture also govern their behavior and beliefs by their own personal, unique experiences.
Hopefully, awareness of multi-cultural issues in dispute resolution has come some distance from the time of the Modoc War. What is clear is that dispute resolution in the multi-cultural context is a critical process in the 21st Century, and recent events demonstrate that it will deepen in importance in the future. Those working in dispute resolution need to develop a foundation of a sophisticated understanding of culture, and develop flexible, open and engaged responses to cultural issues.