Five Ways to Overcome Cultural Features in Mediation

Tue, Dec 31st, 2024 | by Miles Mediation and Arbitration | Article | Social Share

By Sasan Nematbakhsh

In a highly globalized world, commercial disputes are more likely to involve cross-cultural features. (“Cultural features” refers to aspects like language, expression, body language, value systems, governments, and negotiation styles that differ from region to region.) Each litigant’s unique culture, identity, or cultural value system may pose unique challenges to resolving disputes. This adds a layer of complexity in negotiations, further signifying the importance of a mediator’s cross-cultural competency to facilitate the resolution process.

When negotiating across cultures, different perspectives may result in potential misunderstandings, which can reduce the chance of exploring and finding solutions that integrate various perspectives and resolve disputes effectively. These tips can provide you with valuable tools to add to your complex dispute mediation toolbox.

Actively Recognize and Identify Cultural Differences

While obvious cultural differences in one’s tone, expression, or language may be easily identifiable, it takes a well-trained mediator to effectively navigate non-obvious cultural differences. Recognizing the subtle cultural differences such as mannerism and business etiquette require stronger observation.

In a multicultural resolution environment, the actions, gestures, and speech patterns encountered by individuals are susceptible to a wide array of interpretations, potentially leading to misunderstandings and hindering cooperation. The main challenge arises from perceiving parties through our own cultural perspectives. Cooperation can become particularly difficult when these value systems clash. For instance, someone from Saudi Arabia or Japan may take a longer time culturally to establish trust, which the slower pace could be misinterpreted as a lack of enthusiasm for reaching a resolution by someone from the United States.

Meanwhile, the Saudi party might view the American’s fast-paced approach to reaching an agreement as disrespectful and overly transactional, lacking long-term interest in actual dispute resolution. In such cases, it is essential for the party, and mediator, to consider the perspective of the opposing party’s cultural value system rather than solely relying on his or her own. However, achieving this understanding is challenging and requires competence in navigating delicate cultural nuances.

Recognizing the cultural divide adds another dimension to resolving the dispute. It requires more adjustment than a typical behavioral analysis in a domestic setting so the mediator must actively recognize and identify cultural barriers. The mediator’s strongest currency in resolving a dispute is arguably the trust of the parties, and cultural nuances affect how parties perceive authority, build relationships, and establish trust. To remedy often-unintentional divide in dispute resolution, one would be served well by becoming more competent in their cultural intelligence.

Cultural intelligence refers to an outsider’s innate capacity to interpret unfamiliar and ambiguous gestures in a manner consistent with the expectations of the person’s fellow country persons. Possessing cultural intelligence can assist the mediator with the ability to build trust and avoid roadblocks because a mediator with cultural intelligence knows how to properly interpret social cues. For instance, a seemingly innocuous thumbs-up gesture, commonplace for Americans, between Greek or Iranian parties, could have disastrous consequences, as it will be deeply offensive to those parties.

Similarly, discerning facial expressions accurately is crucial, as it distinguishes between various possible cues. A smile, for example, may not universally signify happiness, and a nod may not always indicate agreement but rather understanding or a simple “I hear you”.

Throughout these interactions, understanding the context is paramount. Context serves as a guide for mediators, informing them of the appropriate responses in various situations. Ultimately, establishing relationships and fostering trust, respect, active listening, and open collaboration are crucial. By actively learning, cultivating self-awareness, and demonstrating empathy, individuals can develop the necessary skills to discern the appropriate cues, sharply understand context, and overcome challenges in cross-cultural negotiations.

Beware of Implicit Bias

The value system of a party influences his or her approach to negotiations. Unconscious implicit bias is our natural preference for people who look like us, think like us and behave like us. Once mediators understand their own behavioral patterns and the blind spots of other parties, they will properly respond to tone, negotiation style, body language, hand gestures, and ways each party may handle rejection.

A proper response is situational and depends on the circumstances. When unsure how to handle a matter, caucusing and respectfully asking a party about the nuances involved may be a reasonable path to avoid a roadblock. Mediators are wise to admit the potential for ignorance on the subject matter to facilitate a transparent discussion. Seeking understanding of the system at work by facilitating a resolution-oriented conversation about difficulties that unfamiliar customs pose can in fact show respect for these differences and facilitate trust-building. The parties will likely appreciate mediator’s effort and the good faith shown, which can help avoid ill feelings that may lead to an impasse.

Calibrate the Process

Prior to the mediation, in preparation and during the joint conference, mediators are encouraged to address cultural differences. Additionally, in the opening session, whether done jointly or in a caucus, the mediator has another opportunity to present ground rules that demonstrate the mediator’s cognitive grip on the cross-cultural features of the dispute. For example, in the opening, a mediator with parties of Eastern and Western culture, would be served well by addressing decision-making processes of the negotiating parties and how each company would approach corporate decision-making.

In addition to adjusting the process itself, the mediator must think critically about the underlying needs of each party, how those needs may be driven by their cultural values, and how that positions their interests. Mediator should stay flexible during the proceeding and when necessary, recalibrate their strategy. For example, a mediator may recognize that a party is at unease by the pace of the process. It may be too fast, or too slow for that party. The mediator may benefit by caucusing and discussing the pace of the process with each party separately, and to provide context of the other party’s norm to avoid misunderstandings between the parties.

Include Cultural Competency in Preparation

While we often prepare for the legal aspects of a case, it is essential for the mediator to also prepare for the unique cultural elements of a dispute. Become aware of your own and other’s potential biases beforehand and anticipate how these elements may impact the proceeding. A wise mediator recognizes the process of decision-making is different in every culture.

It is important for mediators to familiarize themselves the unique process for each party’s culture and adjust their process accordingly. Be aware of the actors not in the room. Often, there may be informal influencers in each culture who may not be present at the mediation proceeding and yet make or break a deal. As such, the conscious mediator must find out early on who the players are and how each party will make a decision.

Use Empathy to Avoid Pitfalls

It is quite common when confronting cultural differences for people to oversimplify their counterpart and rely on stereotypes. Instead of focusing on stereotypes, shifting the attention to prototypes, or “cultural averages on dimensions of behavior or values,” can better allow both the parties and the mediator to understand each other’s behavior and adapt their negotiating technique to that prototype.

Having empathy can help the mediator avoid generalization, stereotypes, and other similar pitfalls (like, Middle Eastern people may enjoy “haggling” or Thai people are always welcoming). Yet, each party is an individual who may not conform to common stereotypes.

Each culture may possess different expectations, practices, and experiences that affect communication, trust-building, negotiations, and dispute resolution. When the mediator is aware of these differences, he or she is better equipped to guide the parties to a resolution. Whether or not the parties settle, adopting these strategies make an impasse due to cross-cultural unawareness of the mediator unlikely.

*Originally published in the Daily Report and reprinted with permission.

About Sasan Nematbakhsh

Sasan Nematbakhsh is an accomplished mediator and arbitrator. He is currently serving as the chair of the Dispute Resolution Section of the State Bar of Georgia Diversity, Equity, and Inclusion Committee and is the immediate past chair of the Dispute Resolution Section of the State Bar of Georgia, He has been a guest lecturer of dispute resolution classes at Georgia State University College of Law, University of Georgia School of Law, and John Marshall Law School.