FOSTERING CULTURALLY RESPONSIVE COURTS

• Author: Steven Weller,John Paul Lederach,John A. Martin
• Date: 01 April 2001
• DOI: http://doi.org/10.1111/j.174-1617.2001.tb00603.x
• Published date: 01 April 2001

FOSTERING

CULTURALLY

RESPONSIVE

COURTS

The

Case

of

Family Dispute

Resolution for Latinos

Steven Weller, John A. Martin, and John Paul Lederach

This

article focuses on how mediation services can

be

improved to better reflect the culture-based needs and expec-

tations of Latino litigants. The research on which this article is based was conducted in a court-attached custody and

visitation

program

in one

U.S.

community with a large Latino presence. The. findings, recommendations, and con-

clusions

are

based

on the problems, concerns, and general expectations of more recent arrivals to the United States

-

for

the most part mono-lingual Spanish speaking. The study found that those Latino families have needs in

resolving family

disputes

that

differ from those of most Anglo families. The justice system needs to better under-

stand the culture

of

Latino family life and the ways in which Latinos interact with governmental authority. The

Latino families need education, direction and representation in dealing with governmental authority. The mediator

can help both the justice system and the Latino family in meeting these needs.

One of the great challenges for the courts in the 21st century will be to deal fairly and

effectively with litigants from different cultures,

as

people with Latin American and Asian

roots in particular become a greater percentage of the population of the United States. When

it comes to making decisions about the fate of individuals, justice system practitioners have

worked very hard, especially over the past few decades, to assure that the courts do not dis-

criminate against individuals because of their race, ethnicity,

or

cultural background. The

premise, however, that equal treatment brings equal justice may simply not hold

in

many

cases involving litigants,

as

the courts and justice system embody values and expectations

that largely reflect what long have been the views of a dominant Anglo-European culture.

This article focuses on the needs of one cultural group in the courts, Latinos, and in one

type of proceeding, court-attached mediation, to resolve custody and visitation disputes in

domestic relations cases. It suggests how court-attached mediation services can be improved

to better reflect the culture-based needs and expectations of this increasingly sizable segment

of American society. The findings reported here, however, have implications for dealing with

cultural diversity in other parts of the justice system as well.

How to appropriately serve the growing Latino community

so

that all may share in both

the obligations and benefits of society has long been a challenge for governments in the

Southwest and throughout the nation. The police, social service agencies, and the courts all

operate under legal requirements that can work against the needs and interests of the Latino

immigrant community and with expectations of behavior that can lead to misinterpretations

of the patterns

of

behavior of Latino immigrants. Furthermore, the traditional trial process is

not serving many of these groups, due to cultural differences between the needs of the parties

~

Authors' Note:

This article was developed under Grant SJI-95-03C-E-033 from the

State

Justice Institute. Points of

view expressed herein are those ofthe authors

and

do not necessurily represent the ojicial position or policies of the

State

Justice Institute. The article originally uppeared us

u

paperfor Symposium

2000,

the 15th annual conference

ofthe

Nationul Associationfor

Court

Managementund was published in

The

Court

Manager,

Volume

15.

Issue

3.

It

is reprinted here with permission.

FAMILY

COURT

REVIEW,

Vol.

39

No.

2,

April

2001

185-202

0

2001

Sage

Publications,

Inc.

I85

186

FAMILY

COURT

REVIEW

and the expectations built into the court system. Among the types of disputes that can be par-

ticularly affected by cultural differences are family disputes, especially child custody and

visitation in divorce cases. The justice system must become more culturally responsive, first

by understanding the differing needs of different Latino cultures and then by devising ways

to resolve disputes that incorporate those needs, within the constraints of the law.

One method of dispute resolution that should be able to provide a culturally sensitive

forum is mediation. Many courts now have programs to refer cases to mediation after a law-

suit is filed, either as an alternative to litigation or as a first step prior to a full trial. Mediation

is used most commonly in divorce cases, although it is being used in other civil cases and in

minor criminal cases as well. Mediation provides a means for greater involvement of the liti-

gants in resolving their disputes. Any settlement of a dispute through mediation must be pro-

duced by the parties and is not imposed by the court. Furthermore, mediation gives the par-

ties an opportunity to fashion innovative resolutions that may not be possible through a court

trial.

THE RESEARCH

The research on which this article is based was designed to (a) explore the interaction

between culture and mediation in one U.S. community with a large Latino presence and (b)

begin to examine how to provide mediation approaches that might better meet local needs

(Weller

&

Martin, 1996). Our findings, recommendations, and conclusions are based on per-

ceptions, problems, concerns, and general expectations of (a) more recent arrivals to the

United States-for the most part monolingual Spanish-speaking Latino arrivals-and (b)

the people who provide services both to recent Latino arrivals and established Latino groups

and to the general population. Consequently, the contents

of

this article are primarily appli-

cable to Latino people from Mexico and Central America. Nevertheless, these findings may

also have value for people concerned about developing court services for other Latino popu-

lations. Furthermore, we believe that our recommendations for improving mediation

approaches will be of general interest to those responsible for enhancing court alternative

dispute resolution (ADR) services.

The research was undertaken with two primary objectives. These two objectives were

determining how to (a) improve access to mediation programs by creating culturally

accepted contact points within the community and settings for the mediations and (b) design

the mediation process to reflect the cultural values and expectations of the parties as to the

selection and behavior of the mediator, the range of problems that can be discussed, and the

range of acceptable outcomes. The research thus focused on both the cultural dimensions of

dispute resolution and the way the mediation process worked for the parties.

The study was conducted in a city in the southwestern United States with a substantial

Latino population, approximately

40%

of which was foreign born, according to the 1990

census. The focus of the study was a court-attached mediation program in the domestic rela-

tions division of the trial court of general jurisdiction for the county, which provides

court-attached mediation services to divorcing litigants with custody or visitation disputes.

Data sources for the study included (a) telephone or, when necessary, face-to-face inter-

views with disputants who had participated in cases mediated in the court-attached media-

tion program;

(b)

telephone or face-to-face interviews with disputants who resolved their

disputes by stipulation; (c) interviews with mediators; and (d) interviews with judges, attor-