Navajo and Korean Mediation Processes
Navajo and Korean Mediation Processes
The art of peacemaking is in and of itself harmonious. To that end, peacemaking requires the agreement of all parties or it will not be effective. The Navajo and Korean mediation processes are similar in that they aim to restore harmony and rebuild relationships that have been strained by conflict. They are traditional approaches that have deep cultural bases that do not depend on authority to maintain peace, but actually seek out mediation as a means of collaboration and self-preservation. This paper aims to present the two approaches and then compare the two processes and highlight how each is successful in its respective culture.
Peacemaking and Harmony:
Navajo and Korean Mediation Processes
Navajo peacemaking is based on the concept of restorative justice. It seeks to bring parties together that have been affected by crime in an attempt to reconcile and repair the injury that has been caused (Zion, 1998). Known to the Navajo people as hozhooji nnat'aanii, peacemaking became a formal part of the traditional Navajo justice system in 1982 (Bluehouse & Zion, 1993). Although this type of justice appears to be a new trend, it is actually a throwback to the old Indian ideas of justice (Zion, 1998). To help outsiders begin to understand the premise by which Navajo peacemaking was revitalized, Sullivan (2002) reported from an interview with James Zion the three Cree words that best describe the process. The first is ki-ah-m which means “there are consequences” (p. 184). The second is ah-ki-ah-p which means “let it alone” (p. 185). And the third is tiyospaye meaning “where we live” and “apart but not separated completely” (p. 185).
The Navajo Mediation Process
The Navajo process of mediation is referred to as a Peacemaking Ceremony. It does not look like mediation that is practiced in the United States. Although there is a mediator and two or more disputants, there are also friends and relatives that participate in the process. The dispute itself is referred to as hoxho (Zion, 1998). This is defined as conflict that exists when the environment surrounding the disputants becomes unstable. To assist with balancing this instability, peacemaking relies on spirituality and prayer to help restore the dynamic of the group.
Peacemaking can be initiated in one of two ways. Cases are transferred from district court judges or requests from disputants can be submitted to the district court clerk of court (Brown, 2002). According to Zion (1998), the Navajo peacemaking process is comprised of four stages:
a. The first stage involves getting the parties prepared for the stages that are to come. It is a way for the participants to focus on the ceremony and its goals. This is done through prayer. Additionally, this is when the mediator gets the participants to commit to the process of healing.
b. The second stage is referred to as “talking things out.” An important part of this stage is the understanding of excuses. After the mediator allows the victim to speak of the event and express their feelings about its impact, the offender is given the opportunity to respond to the victim's recollection. An important point to be noted is that the victim may not be the actual person that was wronged if the circumstances support such a situation. The offender then offers an “excuse” for the behavior at the root of the conflict. An important part of the beginning of the peacemaking process is to understand that the offender actually believes the excuses that are being offered. The advantages of this stage are the openness and authenticity with which all participants contribute and have their feelings and opinions validated. This is not an option within the authority of the Navajo court system.
c. The third stage of the ceremony is referred to as “the lecture.” This is not merely advice offered at the spur of the moment in response to the disputants' claims. Instead it is a form of teaching that reflects on traditional Navajo values. In doing so, the peacemaker places the current dispute in the context of creation times. This is the first point that the offender begins to reflect on the excuses that have been given for the addressed behavior.
d. The final stage in the process is reconciliation. This is when the parties reach a decision as to how to resolve the problem at hand. This resolution must include how the relationship will be restored, the restitution that will be paid, and the corrective action needed to avoid the behavior in the future.
The Navajo nation refers to this process as a horizontal system of justice whereby it does not attempt to bypass authority, but simply relies on the relationships within the groups to restore justice where there is wrong (Bluehouse & Zion, 1993). Additionally, it allows anyone to voice their opinions or feeling during the dispute (Yazzie, 1994). Peacemaking is the ultimate preservation of Navajo cultural heritage while adhering to American societal calls for justice (Pinto, 2000). This process has been referred to as “going back to the future” by some researchers (Bluehouse & Zion, 1993; Timmons, 1999). Unfortunately, some have criticized this approach as reactionary (Gray & Lauderdale, 2006).
Mediator. The Navajo peacemaking mediator is called a naat'aannii defined as “a community leader whose leadership depends on respect and persuasion and not a position of power and authority” (Zion, 1998, p. 66). The peacemaker is generally a well-respected member of the community who is familiar with the disputants. Stages one and three are vital for the peacemaker. Stage one allows the peacemaker to bring comfort to the group in order to get buy-in for the process. It is vital in stage three that the peacemaker creates a coherent recognizable connection of the present situation to the past to assist the disputants in moving toward stage four. One of the non-Western qualities that make the peacemaker unique is the ability to assist in reaching noncoercive settlements between disputants (Brown, 1999/2000).
Victim. The victim of a crime is the usually participant in the peacemaking ceremony, along with relatives and friends with knowledge of the situation or its direct effects. However, in some instances the victim is represented by a family member acting in their best interest. Such a case may involve a family member attempting to protect an abused child from a parent. Snell (2007) presented a recollection of stories where the victims of violent crime are trying to use restorative justice to heal through tragedy. In one particular case, she tells of a family facing the drunk driver who killed a brother. Healing was found through the understanding of their own family members partaking in the same negligent behaviors. Elders make valuable contributions via wisdom and presence (Huber, 1993).
Offender. The offender is the person accused of the crime. The offender may also have relatives and friends with knowledge of the situation participate in the process. However, often time when they people participate it can become a type of intervention aimed at helping the offender take responsibility and ultimately corrective action toward changing their behavior. Peacemaking “makes offenders look into their souls” (Yazzie, 1997, p. 4).
Wall (2001) studied the two foundational principles of Navajo culture which focuses on relationships within the community and harmony with the environment. She further reported on the spiritual philosophy of the Navajo through the creation story. This is a customary piece of the Navajo peacemaking ceremony. Most Navajo people feel a longing for adherence to the cultural values specific to their people (Wilkins, 2002). This longing is part of what makes peacemaking a successful alternative to the courts. Wilkins further alluded to the future of the Navajo nation to nurture the peacemaking process for future generations (2002).
The experience of the Navajo people is what makes the peacemaking form of justice unique (Yazzie, 1994). Although seen as a new concept, it was actually a way of life long ago that is being reinstated as an alternative to the adjudicative process being imposed by Western courts. The ultimate goal of Navajo justice is problem-solving through consensus, not punishment (Garrett, 1994). In addition, making the parties “whole” again after conflict is of high importance (Meyer, 1998). There is growing concern regarding the social problems among the Navajo, especially the youth. Yazzie refers to these as today's monsters (1994). Zion (1999) blames the interference with the existence of Indian culture for the restoration of traditional law ways. This may have come at a cost, but seems like a good alternative for the Navajo people in restoring their own justice. One of the best indicators of peacemaking success within the Navajo justice system is its acceptance in the community (Brown, 1999/2000). Peacemaking affords Navajo women meaningful access to the political process (Coker, 2006).
Indigenous justice systems resist traditional structures of justice (Nielsen, 1998). To this end, Navajo law enforcement has traditionally been distrusted by the Navajo community due to their assistance to Western government officials in socialization attempts (Meyer, Paul & Grant, 2009). They further stated that this led to a failure to report crime or assistant in apprehending suspects. Incorporating Navajo peacemaking into current Navajo police practices is a strategy to gain respect and cooperation between the police and Navajo community. Recently, Navajo Nation Police and the Navajo Nation Peacemaker Division have collectively brought a new approach to the law (Neilsen & Gould, 2003).
Prayer is a pivotal part of the peacemaking process. Being a spiritual people, the Navajo rely heavily upon the use of prayer in the various stages of the process. In turn, they turn to their spirituality in the healing of both victim and offender. The Navajo people want the hurt to stop (Zion, 1999). Prayer is an intermediary to that goal.
Korean mediation evolved from Chinese mediation. Specifically, Confucius philosophy is the basis for Korean mediation. Within this philosophy, once interpersonal harmony has been disturbed, it can only be restored through compromise. Those who facilitate the compromising and return to harmony are afforded the ultimate respect (Kim, Wall, Sohn, & Kim, 1993). Before 372 A.D., Korean monks and students were sent to China to study Confucian teachings (Kim, Et al.). These teachings were the basis for obtaining an official government position and eventually became the moral basis of the government and legal system in Korea.
Korean mediation began as a formal process. It grew out of two concerns: one for self and one for others (Kim, Wang, Kondo, & Kim, 2007). With these concerns for the well-being of all members of a community grew a societal goal of interpersonal harmony. Therefore, rather than disrupting the harmony of the society, a wronged person was expected to suffer. Along these lines, forgiveness, tolerance, and cooperation were valued above being right (Kim, Wall, Sohn, & Kim, 1993).
Given the need for societal harmony, Chong Tojon (1342-1398) established the Code of Justice which further incorporated Confucian values into the Korean legal system (Kim, Wall, Sohn, & Kim, 1993). This code set the stage for the Village Code which focused more on conflict resolution that arose in the Korean countryside (Kim, Et al.). Kim (1993) outlined the four main components:
a. Mutual decorum in social relationships,
b. Mutual supervision of wrong conduct,
c. Mutual encouragement of morality, and
d. Mutual assistance in time of disaster or hardship.
These four components laid a foundation for harmony within the Korean society. Maintaining social relationships was necessary for the collaboration needed within the agrarian society of the Korean countryside. The supervision of wrong conduct led to all members of society having an active role in the “governance” to some degree. Encouragement of morality included the positive interactions within the society which leads to mutual assistance in times of hardship. Kim, Et. al., further stated that the village kinsman who administered the Village Code actually had more respect from the peasants than was afforded to government officials.
Even more decentralization began with the formation of Guilds among the Korean people. Not in function, but in membership, these appear to mirror American unions. Interestingly, Kim, Et al., (1993), also spoke of a “peddler's guild” which serves as a go-between for the village people. All of these evolutions are moving more and more toward informal mediation. The reasons are not that the Korean people are unhappy with the formal mediation process. It is simply not convenient for them.
Prior to 1910, social institutions were the primary facilitators of mediation in Korea. However, when Japan occupied Korea, it eliminated the very institutions that were responsible for this process. Examples of these social institutions are the court system, the education system, and the police force. This was a turning point in Korean mediation (Wall, 1993). However, even with this centralization, the underlying values of Korea mediation remained. There continued to be harmony, tolerance, and respect. According to Wall, further reduction in formal mediation occurred due to the Korean War, Industrialization, and close contact with the United States in modern times.
Korean Informal Mediation
Informal mediation, commonly referred to as community and industrial mediation, was created for two main reasons. The first was due to the agricultural structure of the Korean countryside. Due to topography, travel to formal mediation centers was difficult. Additionally, the villagers could not take time away from the planting, tending, and harvesting of crops. The second reason Korea moved toward a more informal process of mediation was due to the role of the Governor. Governors were responsible for a large land area. With such responsibilities as collecting taxes, running the formal court system, and providing defense against enemies, mediation was a role that was gladly relinquished to the villagers. The peasants welcomed this opportunity because they were often mistreated in the formal mediation process which had lingering hierarchical tendencies. With the birth of this informal conflict resolution process, came an overwhelming preference to be judged within the community even when a formal legal system was readily available. Some of the reasons for this according to Kim, Wall, Sohn, & Kim (1993) were:
a. It was less expensive than a formal mediation process,
b. It was not viewed as escalation,
c. It considered all aspects of the case,
d. It kept the village power structure intact,
e. The rules tended to be more flexible,
f. Disputants were more likely to understand the language and the mediation process, and
g. It allowed friends and relatives of the disputants to be involved in the mediation process.
Current State of Korean Mediation
The current state of mediation in Korea is still a society where Confucian teachings are deeply embedded in its culture. Competition is discouraged, and order and harmony prevail. Harmony is not a request, it is a social obligation. The harmony evidenced by the collaboration exhibited in the agricultural countryside of Korea is testimony to its necessity. Planting, tending, and harvesting crops are a collaborative village effort requiring a harmonious relationship to not only sustain, but guide and teach future generations.
The role of all mediation participants is encompassed by the concept of face-saving (Kim, Wall, Sohn & Kim, 1993). The mediator almost always emerges from mediation with face because of the respect granted when a compromise has been reached. The disputants, on the other hand, must not only save face, but give face also. Although placing blame is a vital part of the mediation process, humiliation is not. Just as each party disputes with dignity, opposing disputants must also avoid any degradation of the any party ultimately required to make concessions.
Korean mediators are everywhere. As harmony is a societal obligation, Korean mediators enter conflict whenever it is detected. Status in the village and training as a mediator are not prerequisites.
Although traditional Chinese techniques are sometimes used, Korean mediation is essentially a two-part process: data gathering and disputant reconciliation (Wall, 1993). Kim, Wall, Sohm, & Kim (1993) define this process:
a. In the data gathering stage, the mediator engages in a lengthy conversation with each disputant individually. At this time, general conversation funnels toward the issue(s) at the root of the conflict. At this point, the mediator is simply listening to the disputant, whom is encouraged to vent and show emotion toward the goal of relaxing and preparing for the process. Disputants are encouraged to fix blame on the other party and this blame is openly agreed upon by the mediator. Each disputant is afforded these opportunities. The two main reasons for the mediator's agreement during this part of the process is to save face and build rapport with each of the disputants. During the conversations, the mediator is gathering data to ultimately formulate a private assessment of the situation. The mediator is responsible for determining who will make concessions in the dispute. Although one party will make concessions, Korean mediator outcomes are not dichotomous. Both parties share blame whenever there is conflict because they have upset the societal harmony. Korean mediators will continue to engage in private sessions with each disputant until the mediator feels that all information pertaining to the conflict has been revealed, or a potential reconciliation point has been reached.
b. The second stage of Korean mediation is dispute reconciliation. Once the mediator has recognized a hint of resolution, the mediator will again meet with each part individually and discuss the other disputant's point of view. Although common ground is addressed, the moral imperative to reconcile is emphasized. Korean mediators do whatever it takes to reach resolution. That resolution is shared over dinner or drinks among all parties involved in the dispute. It is culminated with a friendly handshake.
LeResche (1992) outlined a six-step process in her comparison of American and
Korean-American mediation processes. She focused on the ideal of harmony restoration while interviewing Korean-Americans in Washington, D.C. Although more steps were outlined, the same premise was observed.
Primary Role of Mediation
The primary role of mediation in current Korean culture is that of community and industrial mediation. Both types of disputes are routinely mediated by the same individuals. A study by Kim, Wall, Sohn, & Kim (1993) studied the differences between these two mediation environments. They found that disputes were handled profoundly similarly in both instances. Although managers in industrial disputes were more likely to incorporate logic and costs into their conversations, the authors were surprised to find that they also relied upon empathy and understanding more than in community disputes. However, Kim (2007) found later that industrial mediation in Korean is handled in mainly a “compromising” style.
Sohn & Wall (1993) did a study comparing city and village mediation practices. They found very few differences between these two community mediation processes. The primary finding was that intrafamily disputes were afforded more “education” than interfamily disputes. They were more likely to require forgiveness and less likely to seal the deal with a drink.
Although the overall goals of Navajo peacemaking and the Korean harmony restoration process are similar, several differences in the means to attaining that goal through mediation came to light during this research.
The Navajo peacemaker is generally an elder in the community who has knowledge of the disputants and the situation. In contrast, a Korean mediator can be an elder community member, but quite often at the community level is the first person who identifies the disturbance of harmony and steps in to restore it. Both cultures have a mediator who will guide session and make decisions if necessary. However, the Navajo peacemaking makes every attempt to allow the disputants to reach consensus through advice before restitution is mandated. The Korean model almost requires the mediator to mandate concessions due to agreement with both disputants. The Navajo peacemaker is also afforded the opportunity to remand the mediation back to the Navajo court justice system if one or more of the disputants refuse to participate.
Disputant and Participant Responsibility
Peacemaking and harmony restoration are similar where blame is concerned. Although not explicitly stated in the literature pertaining to Navajo justice, disputants are equally responsible because they did not maintain harmony. However, the basis for the disruption of harmony that leads to mediation in these two cultures is vastly different. Navajo peacemaking is court based. Therefore, it is enacted after a crime has been committed to restore relationships between the disputants, their friends, and their families. In contrast, Korean mediation is more community based and serves lower-level disputes as a means of maintaining harmony.
Third-party participants in Korean mediation have private conversations with the mediator, just at the disputants. However, family and friends of the victim and offender in Navajo peacemaking are allowed to become an integral part of the ceremony.
Type of Mediation
The Korean harmony restoration process is devoted to primarily community and industrial mediation. There is no reference in the literature to the Navajo nation practicing any type of industrial mediation. Again, Navajo peacemaking is a reactionary response to a wrong that has been done within the Navajo nation. The Korean mediation process aims to be more proactive in is goal of maintaining societal harmony.
Concessions and Punishment
Due to the Navajo peacemaking process being reactionary to a crime that has already been committed, concessions are expected. Albeit different in nature, the Korean mediation process also requires concessions be made. However, the Navajo nation reserves the right to impose the harshest punishment - exclusion from relationships with the Navajo nation, including relatives.
Data Gathering Process
The data gathering process is one of the greatest differences in between these two cultures. The Navajo nation holds a peacemaking ceremony in which all participants are actively involved, either listening or speaking, throughout the entire process. The literature did not make any reference to caucusing individually within the peacemaking process. On the other hand, the Korean mediation process is built upon the individual conversations between the mediator and each disputant. Whereas the peacemaking ceremony is one session, the harmony restoration process may involve several rounds of conversation.
Navajo peacemaking relies heavily on spiritual beliefs. Prayer is a powerful and prevalent part of the peacemaking ceremony. The Koreans based their mediation on the Chinese model, specifically Confucianism. The teachings of Confucius have stood the test of mediation time in Korea and laid the foundation for the successful harmony restoration model exhibited today.
The influence of foreign countries and cultures was a similarity shared between the Navajo nation and Korea. Although both were subjected to the American military presence and Industrialization (Zion, 1983), the foreign countries that occupied these two cultures were very different. The Navajo nation was surrounded by Spanish and Mexican influence. However, Korea was bound by Chinese and Japanese influence.
Mediation Process Initiation
Mediation cases, for the most part, are assigned to the Navajo Nation Peacemaker Division by the Navajo Court Justice System. However, peacemaking sessions may also be sought out by filing paperwork with the court system. Korean mediation is either sought out by the disputants or recognized by a citizen as a disruption of harmony. At that point the person who identifies the conflict becomes the mediator. This process is, metaphorically, a moral check-and-balance.
The Navajo nation police force is only currently being included in the peacemaking process (Neilsen & Gould, 2003). The Navajo nation has traditionally distrusted police presence due to their assistance with Western socialization attempts (Meyer, Paul & Grant, 2009). The literature did not include much information about the police presence in Korean mediation. It was noted that during the Japanese occupation of Korea (1910-1945) the police force was one of the social institutions that was removed from formal mediation practices (Wall, 1993). However, for the comparison research in this paper, no police distrust was noted in community or industrial Korean mediation.
“A dispute resolution system designed by incorporating the specific needs of a particular community would give everyone a sense of ownership in the process” (Pinto, 2000, p. 284).
Peacemaking works for the Navajo people because they have great respect for their spirituality, the Peacemaker, and the peacemaking process. Because the peacemaker is a well-respected member of the Navajo community, he is very knowledgeable of the relationships within the community. Understanding that maintaining and repairing relationships after a wrong has been done is the premise for successful peacemaking among all participants. The ceremony itself allows for all members of the community who have a vested interest in the situation to be heard. This openness and sharing is what makes the Navajo peacemaking a successful part of their culture.
Harmony restoration works in the Korean culture because there is a great deal of respect for the underlying Confucius teachings that build the foundation for the process. The process appears to be proactive - maintaining harmony to avoid conflict. However, there is also an unspoken reactionary piece that works toward the greater good - the fact that harmony is a societal goal and all members are responsible for maintaining it. The mediator is always a respected community or supervisory member of society that understands the role bestowed. In turn, the disputants understand their role and the role of the mediator in reconciling at all cost. Mediation within the Korean culture works because there is an understanding that one is but a piece of the “whole” and with harmony, the “whole” is maintained.
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