University Times

Although she's a professor of law, Pat Chew believes that the legal system is not always the best way to handle disputes. Sometimes parties in conflict need to look for alternatives that take into account the cultural differences of the disputants.

"So this book really came about by making a very simple premise: When we look at conflict, and not just legal conflict, but conflict itself, I think culture matters," says Chew of her recent publication, "The Conflict and Culture Reader" (New York University Press 2001).

The book is a collection of essays on the inter-relationship of conflict and culture drawn from several academic disciplines. The essays describe how various cultures define conflict and analyze those different perspectives in the abstract and in specific case-based examples.

"In a way, this is quite contrary to what some people in the law say, which is that culture shouldn't matter, because to consider it starts to dilute legal principle. If you start to say a legal principle should vary, or that conflict should be decided differently, or that we should view the conflict differently, then you're moving away from the sanctity of the law."

But bolstered by her pre-law background in social sciences, Chew says that merely applying the law to conflicts and relying solely on the court system for resolution represents too narrow a viewpoint, even for lawyers-in-training.

"To tailor jurisprudence to a particular culture is not embraced by our society or legal system. There is a positive side to that. We do live by the rule of law and it's served us well in this country," Chew says.

"But on the negative side, by encouraging other cultures to be absorbed into the mainstream culture, we lose the re-shaping of a system with potentially better outcomes. I'm interested in different cultural groups — ethnic groups, religious groups, groups linked by sexual orientation — how they might approach conflict differently: How men and women might view conflict differently, for example, always careful not to over-generalize, but recognizing differences and noting that there might be a richness from that that can build a legal core with more fairness."

In law, the so-called cultural defense has been almost always rejected by the courts, Chew says. It is not a valid defense, for example, that behavior considered sexual harassment in the work place under American law is condoned in other countries, even if the accused is from such a country.

"In considering the perspectives about a hostile work environment, one perspective is the harasser's. 'I didn't mean to offend. I thought it was funny.' Well, using this perspective perpetuates the environment. Most courts use the 'reasonable person's perspective,' which is the prevailing view. Would a reasonable person think the environment is hostile? But recently some courts started using a 'reasonable woman's perspective.' To the extent that 'a reasonable woman' might have a different perspective than 'a reasonable random person,' then maybe the outcome would be different," Chew says.

Similarly, regarding racial harassment, what a member of a minority group thinks is offensive or harassing might be different from the reasonable person's perspective.

"So we're dealing with shifting perspectives. First you say, should we consider this other culture? Which is why I included gender issues in this book's discussions, because I think in some ways women live a different culture than men. There is a lot of resistance in the legal system to this. But I think it's worth the risk to consider these issues, how race, gender and culture affect the way we deal with and resolve conflict."

q Some of the essays in Chew's reader discuss particular dispute resolution processes rather than specific culture and conflict resolution issues. At Pitt, Chew teaches a course in alternative dispute resolution (ADR), which nurtures skills in non-litigation contexts. The popular, but not required, course encourages law students to look for solutions to conflict outside jurisprudence. ADR employs techniques such as negotiation, mediation and arbitration, among others, where the parties in conflict have more control over the ground rules than is afforded them in the court system.

"The tendency in law school is to think the best solution is the legal solution. With that assumption comes a lot of other assumptions: the perspective of the parties as adversarial; the idea of self-interest versus collective interest," the law prof says.

But ADR offers different assumptions, in a more informal and private setting. "How should we resolve this conflict? Do we want to go on the basis of law, or on what we think is fair and equitable? Do we want lawyers advising us? Do we want an arbitrator whose decision is binding, or a mediator who can only advise us? Do we want to say everybody can talk for 10 minutes, or do we want to meet over a beer and talk all we want? There are no fixed rules.

"If I drove into your car, the legal solution would start going down a track of torts and personal injury; in ADR you're not limited to that. Litigation usually is premised on the idea that one party wins and one party loses. ADR is premised on the idea — at least in theory — that both parties can reach a satisfactory solution.

"Say it turns out the two parties in a dispute are neighbors. Shouldn't the solution take that into account? The legal principles would not take that into account. So ADR has very different presumptions and is a fundamentally different approach."

Once considered as competition for the traditional legal process, ADR increasingly is viewed as a relevant skill for lawyers. "In the last 20-25 years, ADR has become a mainstream offering at law schools. Will it ever replace the regular legal education? Absolutely not. But viewing ADR as a legitimate alternative is real and is current."

In fact, some states are considering regulations making it mandatory for lawyers to advise clients of the availability of ADR, Chew points out.

"I think the presumption is that lawyers are experts on the law and maybe can consult on other things. I think a lot of lawyers in practice eventually come to think of themselves as problem-solvers and advisers to their clients in ways that go beyond the law. I like that concept of lawyers, helping clients define the problem and then helping the client create a solution that works for the client, even when it may not be a legal solution. If a lawyer assumes the legal solution is the only one, I think that's a disservice to the client."

Ironically, it was while teaching her ADR class last fall that the news broke about the terrorist attacks on New York and Washington. After a few shock-filled days, she tried to re-focus the class on the topic. "There was a lot of resistance to talking about ADR in this context, because their instincts were saying; 'Let's bomb the hell out of them.' And it's understandable.

"I'm not so much questioning that response, but I'm questioning if we understand why we made that response. And that's how I get back to trying to understand the cultural question, why the terrorists did what they did and continue to do what they do.

"It's difficult for Americans to understand; it's even unpleasant for us to try to understand. But to merely say, we can't understand, it's foreign, it's not explainable, it's inhuman, does nobody any good.

"I hope that we honor the humanness of the terrorists — I realize that's a hard view to take — but at some level we have to try to understand the human motivations that prompted their actions. My assumption is that there are cultural explanations for those motivations, whether religious or political or whatever, and my main reason for trying to understand their motivations, not to justify them, is really to prevent other Sept. 11s from happening."

–Peter Hart