California is considered the “ground zero of mediation”, but its Asian communities are mostly oblivious to the existence of mediation and its powerful effectiveness. This popular form of ADR is advantageous over litigation in that it is less expensive, less stressful, less time-consuming, less formal and open to creative solutions both parties can agree upon.[i] Mediation can better provide a means to resolve disputes where culture is a factor because it has the flexibility to go beyond obvious legal matters, allowing for fairer opportunities and better societal understandings.[ii] Presenting the mediation process through culturally accepted frameworks and employing culturally aware mediators would open the large Korean American communities to the attractiveness of this popular process.[iii]
I. Influence of Culture and Law
A. Korea’s Confucian Culture
To properly determine the best educated approach in applying mediation, the cultural and societal traits of Korea through its history should be studied. Confucianism, originating in China, was introduced to Korea in the Chosun Dynasty (1392-1910) and became a powerful ideology which greatly influenced the economic, political and social structure of Korea.[iv] In their desire to control the aristocracy and weaken the power of Buddhist monasteries, the Chosun leaders sought to reorganize society with a more conservative version of Confucianism referred to as neo-Confucianism.[v] Neo-Confucianism instituted class separation[vi] and promoted inequality between generation and gender.[vii] Each individual was expected to know their status in the rungs of society, serve their roles and tasks for the betterment of the whole and never for themselves.[viii] Family dynamics were steered to patriarchy and patrilineality, confining individuals into rigid spheres of gender order and privileges.[ix]
According to neo-Confucius beliefs, harmony and order through submission is the greatest virtue attainable by a person.[x] Direct confrontation is a sign of aggression, abhorrent in a culture that deeply values hierarchy because it is viewed as a challenge to one’s position.[xi] Conflicts between those of different statuses are signs of utmost disrespect and insubordination.[xii] This is one of the reasons why court disputes have been a rare occurrence – a person who cannot reconcile conflicts is deemed shameful and does not belong within society.[xiii] Confucius beliefs are pervasive even today, but in light of massive economic growth and industrialization in Korea since 1988 as well as a series of political reform, Korea is quickly becoming westernized in its values of individualistic success.[xiv] Although still “anchored in Confucian values of family and patriarchy”, Korea is a swiftly transforming country.[xv]
B. Korea’s View of Law
Understanding of the legal consciousness of Koreans would help to formulate a strategy which showcases the unintimidating effectiveness of law and mediation. Having to jump from a vertical hierarchical system to a horizontal equal system has caused a confusing disregard of rooted customs. In a matter of only a decade, however, Koreans are increasingly willing to litigate to resolve their disputes even being labeled as a “litigious zeitgeist” due to the explosion of lawsuit[xvi]. This willingness to accept court processes is an illustration of the rapid pace of change in Korea.
Korea’s three branches of government resemble those of America’s, but has been a relatively recent development. The current constitution echoes the power of individual rights in western countries, but these democratic values are still new concepts to Korea, yet to be fully understood and incorporated.[xvii] Democracy and its implementation have occurred only in the past decade in Korea in contrast to decades of development and saturation in western countries.[xviii] This may explain why Koreans are slow to understand the implications of the new laws.[xix] Also hampering the progress of democracy is the variance of interpretations of law by judges who are the sole channels of direction of these laws in a Confucianism grounded society.[xx]
Koreans define and perceive the word “law” differently from Americans – the idea of “law” elicits fear and helplessness instead of safety and rights.[xxi] However this apprehension only appears when law is utilized as a threatening display of status. Rules such as traffic regulations and littering laws are regularly disregarded and rarely enforced by the police.[xxii] The reasons behind the general disrespect and abuse of the law are found in Korea’s history.
Since the rule of the dynasties when Buddhism was religion of the kingdom, the religious and political leaders used law to exploit their people.[xxiii] Even after Confucian teachings overtook Buddhism as the dominant cultural guideline; it built a strict class system that granted favor to the nobility.[xxiv] The sons of the noble class (yangban) who passed exams were rewarded positions and performed the functions within the three branches of government.[xxv] Rulings and decisions were arbitrary and inconsistent as they fell upon the whims of the official.[xxvi] The Confucius hierarchical system allowed for legal privileged and exempt upper class to be above the law while “the vast majority of the people viewed the law as a means of oppression.” [xxvii]
Colonization by Japan in 1910 subjected Korea to another set of dictatorial laws that moved to eradicate its culture.[xxviii] The Japanese, with the aid of Confucius leaders, used the existing exploitative legal system to control Koreans.[xxix] (This would later contribute to the decline of Confucianism in the government.[xxx]) Again, the law defined the hierarchical structure of inequality and the absence of fairness. Patriotism during the colonial period was synonymous with the breaking of the law.[xxxi]
After its emancipation in 1945, Korea adopted the general government structure and constitutional law of western countries,[xxxii] however successful assimilation of concepts of freedom, inalienable rights, equality and justice had yet to occur.[xxxiii] While Korea witnessed the efforts of some of its presidents working to promote democratic progress and reward individual achievements;[xxxiv] they also experienced some dictators who abused the law for their own gain.[xxxv] By this time, Korea was experiencing rapid development and urbanization and Koreans followed the bad examples of their leaders by resorting to bribery and fraud.[xxxvi] When the corruption continued and worsened, they abandoned following the law and only sought selfish advantages.[xxxvii]
After the dictatorships, Korea blossomed into a powerful economic powerhouse and there was continued democratic progress as Koreans slowly began to trust the legal system.[xxxviii] The economic boom gave rise to the conglomerates (chaebols) that remained vertically structured and played a large part in the formation of an autocratic system in Korea.[xxxix] The Confucius culture of respecting authority allowed unlimited power to the chaebols and they were able to suppress disputes.[xl] The economic crisis in 1997-98 brought about reformation of laws that called for transparency and an increase of accountability of the businesses. Nevertheless, lawsuits and limited commercial arbitration became a growing practice[xli].
Dispute resolution in the form of informal mediation has been exercised in Korean culture by elders and leaders of communities.[xlii] Reconciliation was basically pushed through pressure, utilizing evaluative and facilitative styles to maintain harmony, consistent with Confucius beliefs.[xliii] Judges now play this role in Korea where they exert great influence in deciding the outcome of all cases of the humble parties as the “parent of the people”.[xliv] Mediations are court-connected where judges supervise the mediations – should the mediation fail, the case turns into litigation and mediation confidentiality is nonexistent.[xlv] The judge also has the authority to approve or reject the settlement the two parties agreed upon, replacing their judgment over the parties’.[xlvi] With the increase of filed cases in the ‘90’s, the Korean Supreme Court as of 2004[xlvii] is considering an establishment of a national private alternative dispute resolution system.[xlviii]
For a large part of Korea’s history, law held negative connotations for its people. It was used by ruling powers to oppress and control, and a symbol of inequality and helplessness by the lower classes. The legal system, viewed as unreliable and corruptible, is something to be generally avoided and even ignored. The idea that the law could be used to uphold justice and promote fairness is still an alien concept. Since mediation is so closely connected to the court systems Koreans could still be distrustful of it, much less even know about it.
II. Korean Immigrants in America
A. Korean Communities and Their Vulnerabilities
Koreans are one of the fastest growing subgroups of Asian Americans according to the U.S. Bureau of the Census in 2000.[xlix] Many were pulled to America in favor of economic opportunities and settled in concentrated communities throughout the country.[l] Despite the growing number of Korean communities in America, Korean communities lack the same cultural progress of Korea. Even as the neo-Confucius grip has been slowly loosening in Korea, the traditional culture of its immigrants remains in the past. The first generation Korea-Americans’ values and traditions are seemingly stuck in time.
Staying in such communities made it difficult for Koreans to assimilate into American society – it was unnecessary to learn English and adapt to the new culture.[li] However, the Korean communities did not protect them from the anxieties and stress of living in a different country called “culture-bound vulnerabilities”.[lii] Korean Americans experience “acculturative stress” which relates to all the challenges of adapting to a new environment such as cultural barriers, language barriers, and discrimination.[liii] They also undergo “intergenerational conflicts” with its Confucius expectation of filial piety that imposes pressure on children to respect and follow the wishes of their parents.[liv] Korean Americans are also prone to perfectionism and strive for academic excellence and high expectations.[lv] Not living up to these levels leads to great anxiety and depression.[lvi] Alcoholism and suicide rates are comparatively higher among Korean American than other Asian Americans.[lvii] However, Korean Americans consider mental health as unimportant and shy away from receiving mental health services due to their culture of shame and guilt.[lviii]
Psychiatric studies seem to indicate that multicultural education would provide helpful information on the importance of counseling.[lix] “Knowledge acquisition on the nonstigmatizing nature of counseling and its focus on situational problems of everyday life may encourage utilization rates. Endorsing information on the various types and modalities of services, the role of a counselor, and the assurance of client confidentiality may promote positive outlook on counseling as a viable coping resource.”[lx] This same model should be used to promote the use of mediation services in Korean communities.
B. The Impact of Korean/Asian Stereotypes in Mediation
Another reason multicultural understanding is important is because of the influence racial stereotypes have on legal decision makers from witnesses to jurors to judges.[lxi] Outsiders tend to view a group a certain way due to deeply rooted stereotypes and insiders view their own group with favor (“in-group favoritism” and “out-group antagonism”).[lxii] These impact the perception of the opposing side and even, in this case, the mediator.[lxiii] Negative culture myths impair the “disadvantaged side” from enjoying the full benefits of mediation since it does nothing to protect the less powerful minorities of society.[lxiv] The informal and open nature of mediation allows for undeterred prejudice over an assumption that both sides share the same cultural and societal values.[lxv] There is an argument that litigation is preferable for minorities since the courtroom is a better guarantee of a fairer preservation of rights and “equal procedural weapons” in an adversarial fight.[lxvi] For example, women are considered more relational and might be more prone to compromising in mediation.[lxvii] However, mediation still provides a forum where the disadvantaged can provide their authentic narratives and avoid the possible prejudice of the jury.[lxviii]
Framework play an important part here where cultural myths can be used in a positive or negative light based on the party’s agenda.[lxix] Korean Americans carry the general stereotypes of Asian Americans – they are seen in conflicting ways as both the “model minority” and the “yellow peril”.[lxx] They cannot escape the label of being foreign and exotic.[lxxi] Asian Americans can be portrayed by either side as the model minority which aligns them with the white community pitted against other minorities[lxxii] or as a foreign “invasion of home turf”[lxxiii] which calls for more scrutiny and distrust.[lxxiv] A mediator aware of these prejudices, including their own, can promote a fairer process by not being affected by subtly racial narratives and pointing them out to the parties.[lxxv]
III. Multi-Cultural Mediation of Conflicts
Below are two examples of how cross-cultural mediation can assist in a family dispute.
A. Intergenerational Conflicts
Korean immigrants and their children experience intergenerational conflict – the children pick up Western individualistic values from the media and social circles outside the home, and their parents live with a Confucius collectivistic mindset where they expect filial piety and hierarchical respect.[lxxvi] The resulting misunderstandings and pressure causes anxiety and conflict within the family which in turn may lead to lower self-esteem and higher depression rates in children.[lxxvii] The amount of conflict depends on the level of acculturation of American culture the parents attain[lxxviii] and the enculturation of the Korean culture the children retain.[lxxix]
Lack of language fluency furthers the gap between the generations since a major mode of communication is limited to rudimentary words.[lxxx] Parents and children experience relational and emotional distance from each other[lxxxi] and the children tend to give up in attempting teaching their parents American culture and customs.[lxxxii]
A mediator would face difficulty convincing the Korean immigrant parent to participate in mediation. The mediator, with an understanding of neo-Confucius values, would have to patiently explain that mediation does not threaten the structure and harmony of the family[lxxxiii], but instead is a means to better communicate with their children through a cultural interpreter to find a safe solution they can approve of; mediation is a tool to explore options and make informed decisions, not a tricky legal procedure outside of their control.[lxxxiv] More importantly, it is confidential where nobody outside the mediation will discover the family’s secrets and the Korean community will be unaware of the mediation so the family will not face the potential embarrassment of having to go through such a vulnerable process.[lxxxv]
If a settlement is reached, the mediator would have to stress the importance of complying with the binding agreement and inform them of the legal repercussions should they not uphold their side of the agreement.[lxxxvi]
B. Gender Conflicts
Neo-Confucianism placed greater restrictions on the women and the stricter adherences to the role of the domestic “virtuous woman” was the sign of excellent breeding.[lxxxvii] Traditionally, women are voiceless and powerless especially when they leave their homes and join the household of her husband. There they are subjugated to the demands of mothers-in-law and sisters-in-law. The hierarchical structure requires that the dominant husband rules over his subordinate wife.[lxxxviii] Korean courts have supported the men in their rulings in divorce and child custody illustrating the want to preserve the patriarchal structure and stable harmony.[lxxxix] The dogged determination to maintain the sexist tradition even under international pressure has caused Korea to be labeled as “one of the most male-dominated societies on the globe beyond the Islamic world”.[xc]
Korean American women suffer a major power disadvantage in family disputes due their status in society.[xci] In the example of domestic violence, they must struggle with multiple difficulties as a battered woman and an Asian immigrant in America, such as language, stereotypes and culture.[xcii] A Korean woman can face the humiliation and fear of ostracism in a foreign country should she choose to divorce her husband.[xciii]
An effective mediator should be aware of these hidden issues to help produce an effective procedure and outcome for the Korean woman who is a victim of abuse and/or seeks a divorce.[xciv] Through education and cultural sensitivity, the woman can be encouraged to speak comfortably about their disputes in a secure mediation that promises confidentiality and proper legal security.[xcv] The husband would be informed of the non-threatening gesture of mediation in that his authority as the head of the family will remain secure.[xcvi] The trained mediator would also smooth out the gender power imbalances during the process[xcvii] and explain the legal ramifications and possible litigation should the parties not comply.[xcviii]
Conclusion
Mediation is the best forum for Korean Americans to “air dirty laundry” in privacy and safety in the presence of a culturally aware mediator.[xcix] Deeply entrenched cultural beliefs should be openly acknowledged and discussed instead of being shunned in favor of forcefully applying Western ideology.[c] The mediator should also be aware of their own biases and fears of being politically correct.[ci] “Cultural awareness does not mean that one can understand the motivations, needs, and expectations of a particular individual simply because one has a general understanding of the individual’s cultural background. Instead … [it] provides a tool to help unravel the complexity of individual circumstances.”[cii] As a group generally distrustful of legal systems and avoidant of direct confrontation, mediation may be the best form of dispute resolution for Korean Americans to encourage non-judgmental dialogue and help promote change.[ciii]
[i] Isabelle R. Gunning, Diversity Issues in Mediation: Controlling Negative Cultural Myths, 1 Journal of Dispute Resolution 55, 55-56 (1995).
[ii] Steven Weller, et al., Fostering Culturally Responsive Courts The Case of Family Dispute Resolution for Latinos, 39 Fam. Ct. Rev. 185, 2 (2001).
[iii] Id.
[iv] Ilhyung Lee, The Law and Culture of the Apology in Korean Dispute Settlement (With Japan and the United States in Mind), 27 Mich. J. Int’l L. 1, 6 (2005).
[v] Erin Cho, Caught in Confucius’ Shadow The Struggle for Women’s Legal Equality in South Korea, 12 Colum. J. Asian L. 125, 2 (1998).
[vi] Lee, supra note 4, at 8.
[vii] Cho, supra note 5, at 2.
[viii] Id.
[ix] Id.
[x] Id.
[xi] Lee, supra note 4, at 8.
[xii] Id.
[xiii] Id. at 7.
[xiv] Id.
[xv] Id.
[xvi] Id. at 7-8.
[xvii] Kay C. Lee, Confucian Ethics, Judges, and Women: Divorce Under the revised Korean Family Law, 4 Pac. Rim L. & Pol’y J. 479, 3 (1995).
[xviii] Lee, supra note 4, at 7.
[xix] Chan Jin Kim, Korean Attitudes Toward Law, 10 Pac. Rim L. & Pol’y J. 1, 1 (2000).
[xx] Lee, supra note 17, at 3
[xxi] Kim, supra note 19, at 1.
[xxii] Id. at 2
[xxiii] Id. at 3
[xxiv] Id.
[xxv] Id.
[xxvi] Id.
[xxvii] Id.
[xxviii] Id. at 4.
[xxix] Cho, supra note 5, at 7.
[xxx] Id.
[xxxi] Kim, supra note 19, at 4.
[xxxii] Lee, supra note 17, at 3.
[xxxiii] Kim, supra note 19, at 5.
[xxxiv] Id. at 6.
[xxxv] Id. at 17.
[xxxvi] Id.
[xxxvii] Id.
[xxxviii] Lisa Blomgren Bingham, et al., Participatory Governance in South Korea: Legal Infrastructure, Economical Development, and Dispute Resolution, 19 Pac. McGeorge Global Bus. & Dev. L.J. 375, 3-4 (2007).
[xxxix] Id. at 4.
[xl] Id.
[xli] Id.
[xlii] Id.
[xliii] Id.
[xliv] Lee, supra note 17, at 4-5.
[xlv] Bingham, et al., supra note 38, at 7.
[xlvi] Id.
[xlvii] Id.
[xlviii] Id.
[xlix] Josephine M. Kim, Article 27, Culture-Specific Psychoeducational Induction Talk as an Intervention to Increase Service Utilization Among Minority Populations: The Case of Korean Americans, Counseling Outfitters (November 16, 2011, 3:04 PM), http://counselingoutfitters.com/vistas/vistas05/Vistas05.toc.pdf, at 130.
[l] Giyang An, Enhancing the Effectiveness of Mediation in Korean-American Family Disputes: Cultural Sensitivity Training for Mediators and Co-Mediation Teams, 11 Cardozo J. Conflict Resol. 557, 2 (2010)
[li] Id.
[lii] Kim, supra note 49, at 130.
[liii] An, supra note 50, at 2.
[liv] Id.
[lv] Id.
[lvi] Kim, supra note 49, at 130 and 131.
[lvii] Id. at 131.
[lviii] Id. at 130.
[lix] Id. at 131.
[lx] Id.
[lxi] Cynthia Kwei Yung Lee, Race and Self-Defense: Toward a Normative Conception of Reasonableness, 81 Minn. L. Rev. 367, 2 (1996).
[lxii] Id.
[lxiii] Gunning, supra note 1, at 58.
[lxiv] Id. at 58-59.
[lxv] Id. at 62.
[lxvi] Id. at 62, 65.
[lxvii] Id. at 63.
[lxviii] Id. at 67.
[lxix] Id. at 71.
[lxx] An, supra note 50, at 2.
[lxxi] Gunning, supra note 1, at 75.
[lxxii] Id. at 77.
[lxxiii] Lee, supra note 61, at 21.
[lxxiv] Gunning, supra note 1, at 75.
[lxxv] Id. at 79.
[lxxvi] Richard M. Lee, et al., Coping With Intergenerational Family Conflict: Comparison of Asian American, Hispanic, and European American College Students, 48 Journal of Counseling Psychology 410, 410 (2001).
[lxxvii] Id. at 410-411.
[lxxviii] Eunjung Kim, et al., The Korean American Family: Adolescents Versus Parents Acculturation to American Culture, 15 Journal of Cultural Diversity 108, 109 (2008).
[lxxix] Irene J. Kim Park, Enculturation of Korean American Adolescents Within Familial and Cultural Contexts: The Mediating Role of Ethnic Identity, in Family Relations 403, 403 (Blackwell Publishing 2007).
[lxxx] Kim, et al., supra note 78, at 109.
[lxxxi] Park, supra note 79, at 405.
[lxxxii] Kim, et al., supra note 78, at 114.
[lxxxiii] An, supra note 50, at 7.
[lxxxiv] Weller, et al., supra note 2, at 10.
[lxxxv] Kim, supra note 49, at 130-131.
[lxxxvi] Weller, et al., supra note 2, at 12-13.
[lxxxvii] Cho, supra note 5, at 2, 4.
[lxxxviii] Lee, supra note 17, at 3.
[lxxxix] Id. at 6.
[xc] Cho, supra note 5, at 18.
[xci] An, supra note 50, at 6.
[xcii] Id.
[xciii] Id. at 9.
[xciv] Id. at 10.
[xcv] Id. at 9.
[xcvi] Id. at 7.
[xcvii] Id.
[xcviii] Weller, et al., supra note 2, at 12-13.
[xcix] An, supra note 50, at 8.
[c] Id. at 9.
[ci] Id. at 10.
[cii] Weller, et al., supra note 2, at 14.
[ciii] An, supra note 50, at 12-13.