Ethnocultural Groups
&
The Justice System in Canada
A Review of the Issues

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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