Cross – cultural Differences in Mediation

Mediation is mostly about communication… effective communication. The Mediator’s principal goal is to open the communication channel between the parties so that they can understand each other better and together find an optimum solution to solve their dispute.

But how easy is it to communicate between disputants of different cultural backgrounds and languages in international business disputes? It is a fact that people from diverse cultures resolve their internal and external conflicts in different ways[1].

Sometimes there is a difference between intent and impact. One person’s positive intent can have a negative impact on the recipient, especially when the two people come from different cultures[2]. Some cultures[3] communicate in a more rational/linear style (focusing on clear, specific outlining of issues). Others[3] rather communicate in an emotive way (focusing on emotions and feelings).

So we can say that differences in culture can really constitute a problem during a Mediation session. Both the Mediator and the parties should be aware of this in order to find ways to overcome this issue.

The first step should be to identify the differences that can be together at the table. Jeswald Salacuse’s book “Making Global Deals” comes up with ten ways that culture could impede parties from settling[5]:

1. Negotiating Goal: Contract or Relationship? Salacuse considers that Americans tend to view the goal of negotiation as coming up with a signed contract, while view the goal of negotiation as the opportunity to establish a relationship between the parties [6].
2. Negotiating Attitude: Win/Lose or Win/Win? Salacuse considers that because of culture or personality, a party can act in a negotiation with a win/lose approach (distributional negotiation) or a win/win approach (integrative negotiation)[7].
3. Personal Style: Informal or Formal? This refers to the way the negotiator acts, according on how he talks, uses titles, dresses, speaks and interacts with others. Americans are considered informal negotiators; they can inquire about the other side’s family life, take off their jacket, roll up their sleeves and address the other party with their first names. can feel intimidated; for example, for them using the first name right away is a sign of disrespect[8].
4. Communication: Direct or Indirect? American negotiators tend to communicate rather directly. tend to use more circumlocutions, figures of speech, facial expressions, gestures and other kinds of body language. This can create problems when the direct negotiator does not get a firm, clear response from the indirect negotiator[9].
5. Sensitivity to Time: High or Low? There are many stereotypes in this area: Germans are usually on time, while Latin Americans tend to be late. Japanese negotiate slowly, while Americans advance quickly to close a deal. There are some cultures which try to reduce formalities and get down to business fast. Some find the negotiation as an opportunity to build long lasting relationships and therefore need more time to get to know the other party well. They can even be suspicious of attempts to shorten up the negotiation[10].
6. Emotionalism: High or Low? Here we find some more stereotypes: Latin Americans are mostly known for showing their emotions during a negotiation, while Japanese tend to hide their feelings. Of course, individual personalities may overcome these cultural stereotypes[11].
7. Forms of Agreement: General or Specific? Americans tend to prefer very detailed contracts, with everything covered. prefer general principles in their agreements, since they tend to trust the relationship and think that if something should arise, the relationship will help deal with those matters. In this case, they can suspect on the Americans for trying to cover up every detail, as if they did not trust the relationship that was built between them[12].
8. Building an Agreement: Bottom Up or Top Down? This refers to the fact that the agreement can be reached by settling a series of little problems or by agreeing on a few general principles that are used to fill in the specific problems. Americans tend to prefer to settle step by step. Latin Americans would rather agree on few general principles that are used to fill in the specific issues[13].
9. Team Organization: One Leader or Group Consensus? This refers to how each negotiating team performs. The one team has one leader with full authority to decide on all the issues. The other team has a relatively large amount of members and it is not clear who has the authority to make the decisions[14].
10. Risk Taking: High or Low? This aspect relates with the 9th factor.

Latin Americans do not take many risks and operate on a team basis, whereas Americans are more risk-takers and tend to be organized from the top down[15].
Selma Myers has another interesting approach on this matter. In her book “Mediation Across Cultures”, she comments on some aspects of culture that may affect mediation[16]:

Mainstream American	Other Cultures
Individual is valued; independence and decision making are important. Recognition is expected and honored.	Group is considered more important than the effort or recognition of the individual.
Informality is norm; almost everyone uses first names.	Permission is needed to use first names: some never use first names.
Mobility has become important. One often must leave family and friends for a new job and so must make new friends quickly.	A great number of the world’s people have never left home; their friends are those they have known all their lives.
Each person is expected to have an opinion and express it freely.	Deference is to be given to persons in power or authority.
Direct communication is expected; saying what is on your mind is important.	Other cultures consider directness and open criticism offensive and often use intermediaries.
Competition and ambition stimulate high performance.	Harmony influences communication, and personal ambition is frowned upon.
Individuals have the right to challenge authority.	Great respect is given to authority that is rarely challenged.
Time sense – emphasis is not on past, but present and future.	Reverence for the past – ancestors and heroes drive much of people’s behavior.
Nature can be challenged, controlled and dominated (from air conditioning to mountain removal).	Some cultures believe life is pre-ordained; stress harmony with nature.
People are measured by what they do.	People are measured by family and origin.
Materialism is paramount, respecting power, money and possessions.	Greater emphasis is placed on spiritual approach.

[17]

It is important that the Mediator is aware of these cross-cultural differences during the mediation. He can then sense when a communication problem arises and can affront it better.

The Mediator can also consider talking about the cultural differences[18] with the parties. He might choose to do it at the beginning of the session, during the opening statement[19], or save it for a risky moment, as an ice breaker or a way to reframe the problem. Caucuses can also be a good moment to affront these issues with the parties.

At any moment when the Mediator senses that a problem could arise or is arising due to cultural misunderstandings or miscommunications, he/she should help the parties identify this issue. For this purpose, he can use the principled negotiation techniques[20], which separates the people from the problem. In this way, parties can focus in the dispute and leave the cultural differences aside.

Co-Mediators who are culturally similar to the parties, can also help in this issue. This does not mean that the Mediators from the same culture will understand their equal parties, but the perception of similarity that the parties perceive can be important to establish trust and safety in the process and the Mediator[21].

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