By Pratyush Singh*
Cross-Cultural Mediation
Introduction:
Mediation is a method of settling disputes in which two or more sides attempt to come to an understanding with the assistance of an impartial party who assists them in the process. Communication is one of the key requirements for this process. However, there are numerous factors that can act as a barrier to this process of communication. Hostility or mistrust, differences in languages, or even clashes resulting from emotions can cause frustration between the parties leading to an unproductive session. These factors often manifest themselves during a cross-cultural mediation. As the name suggests, cross-cultural mediation focuses on resolving conflicts that are mostly triggered by cultural misunderstandings.
Culture can be defined as “a learned system of values, beliefs and/or norms among a group of people.”[i] It can be broadly defined to include factors like ethnicity, religion, racial origin, and even a political culture dimension. Defining culture is merely the beginning. The real issue is to identify the effects of cross-cultural differences on a mediation process. These cross-cultural differences can lead to actions being labelled as unusual if not disrespectful/offending by those from another culture. Paul Pedersen, a cross-cultural expert had said that “behaviors have no meaning until they are placed in a cultural context.”[ii] Unfortunately, we often react to these cultural differences as if they are a deliberate response to our own conduct. As a result, it can elicit a wide range of reactions from mild irritations to high levels of tension that can jeopardize business agreements or make conflicts worse. People in these situations start questioning the intention and integrity of “someone like that.”
While there exists a plethora of literature on the problems that exist in a cross-cultural mediation process, we shall be exploring how a mediator can identify and overcome these problems.
Tools for Navigating a Cross-cultural Mediation:
Before dwelling upon the differences that can arise during the process of a mediation or a negotiation, it is imperative to go through some key strategies for dealing with cross-cultural issues. The three strategies that are the most frequently used and highly effectual in nature are holding pre-mediation meetings, incorporating the Socratic method of questioning, and having caucuses during the session itself. While these are often used in a normal mediation setting, they are used for a different purpose in cross-cultural mediation.
- Pre-mediation meetings:
While quite rare to witness in a community mediation, but a pre-mediation meeting is often undertaken during a commercial mediation. It can either be a private meeting of the mediator and one of the parties or a joint meeting with everyone.[iii] In a usual setting, such a meeting is used for administrative purposes such as signing general or confidentiality agreements, establishing a basic relationship, or ascertaining the representation of parties.[iv] However, for a mediator involved in a cross-cultural dispute, it is a helpful environment to assess whether some underlying issues are more important than the obvious substantive ones. These issues can be related to class, national identity or pride, harmony, and a range of other issues. This will help the mediator formulate their approach catered to the nature of the parties . A concept later explored as well, it is often observed that some parties require relationship and trust building (often witnessed in parties belonging to Asia). The pre-mediation meeting can act as an excellent place to kickstart this process to ensure that the main meeting can use that foundational trust to build upon.
- Socratic Method:
In a situation wherein the parties do not recognize the nuances of different cultures, a Socratic method of questioning can be applied. In this method, instead of explicitly telling the party what to do, an indirect method is followed. Pertinent questions are asked to the person for which they have to come up with a clear answer. This helps navigate the thinking process in a much more effective manner as the parties are coming up with a solution themselves.
- Caucus:
A caucus is a private session with the mediator in which one of the sides of the conflict expresses their interests/concerns. It is distinct from the joint session in which both sides and the mediator take part.[v] Not only does a caucus help the mediator gauge the cultural traits of the party but also their cultural understanding of the other party. Especially in conflicts involving Asian parties, mediators believe that caucuses are an effective mechanism as it prevents the parties from having a continuous confrontational discussion.[vi] The mediators can use this tool in diverse ways depending upon the kind of parties and issues that they have to deal with
Differences that can arise and possible solutions:
- Communication:
Edward Hall introduced the idea of “high and low-context communication.”[vii] These differences in communication are the ones that are the most commonly observed in a cross-cultural mediation. High and low-context communication is the way in which members of a particular culture interact with each other. People belonging to “low-context cultures” are more reliant on verbal means of communication, while people from the “high-context cultures” rely on more non-verbal means of communication. It is generally observed that the Western countries employ a more direct and low-context means of communication, while the Asian countries are more accustomed to high-context means of communication.
If in a mediation setting wherein both types of the abovementioned cultures take part in, the mediator should take up the role of a translator. For example, a party belonging to a low-context communication culture might be a bit more assertive with their approach. The mediator’s job herein would be to soften the translation to avoid conflicts. The mediator can also use the caucuses to understand the stance of parties and present it in a manner amenable to the other.
- Dimensions of culture:
Geert Hofstede has undertaken and accessed numerous empirical studies pertaining to different cultural dimensions. They are divided into various sub-categories and accessed individually. [viii]
- Power Distance Index:
The Power Distance Index (PDI) is a measure of how often the less dominant members of a particular culture acknowledge that power or influence present in that culture is spread disproportionately. It seeks to measure the hierarchy and an imbalance of power dynamics. Asian, middle-eastern and Latin American countries usually fare higher in this index. While dealing with a person belonging to a high PDI, the mediator must try to strike a balance between taking enough control so that the other party respects the position and not being disrespectful or challenging the parties’ authority. Parties from a lower PDI can be informal in nature which may feel rude to the other party. The mediator here has to put a lot of emphasis on treating everyone equally.
- Individualism and Collectivism:
As evident from its name, this dimension focuses on whether a culture values interpersonal relationships or personal achievements. While individualists will be more focused on their individual interests during the session, the collectivists will attempt to work towards relationship building. Mediators very early into the meeting have to access this and guide the mediation accordingly. This dimension also impacts the process of choosing a mediator. The collectivists prefer a person who they already know. For example, in Japan, parties often pick a mutual friend to mediate. The individualists, on the other hand prefer an unbiased third-party entity to mediate.
- Masculinity and Femininity:
This dimension attributes the traditional characteristics of the two sexes to the parties. The masculinity dimension focuses more on assertiveness while the femininity dimension focuses on cooperativeness. The approach used in individualism and collectivism can similarly be applied here.
- Uncertainty Avoidance Index:
This index focuses on the level of ambiguity or uncertainty in certain cultures. A culture ranking high on this index would be heavily reliant on rules and regulations to govern their day-to-day activities. The people here prefer a certain degree of control over their environment. On the other hand, a lower-ranking culture here would be more accommodative and flexible in nature. A higher-ranking party would probably bring a specialist for the mediation. These parties prefer that the meetings are structured in nature and are apprehensive of novel solutions. The mediator may have to be mindful of this while speaking to the other party in the caucuses.
While there may exist other facets of a culture that can impact a mediation meeting, the ones covered above are the most prominent ones. They manifest themselves in almost all cultural clashes and can be countered with a balanced approach by the mediator.
Conclusion:
A cross-cultural mediation will always bring forth a new set of challenges for a mediator. This is because they will always have much more complex situations owing to their inherent differences. While the basic strategies mentioned above can help the mediator guide the parties better, there are always two fundamentals that they will have to remember. Learning about the cultural stereotypes of the parties beforehand and actually assessing them before and during the meeting. The mediator can then devise a new way if they deem fit based on the circumstances and will be able to avoid these “cultural clashes.”
The best way however is the mediator being clear about the objectives of the parties. This itself will require cultural understanding but with this in mind, the mediator can navigate the entire process. The mediation as often described, is a ‘win-win solution.’ This solution can only be achieved once the parties with help of the mediator are able to identify the commonalities between their interests. Lastly, the mediator should let go of their own cultural biases and ensure that they are a neutral observer in the meeting.
[i] Kai Lucke and Aloys Rigaut, Cultural Issues in International Mediation, EU as Mediator (2002).
[ii] Paul Pedersen, Guest Lecture to John Barkai’s Class, International Negotiation Class (2006).
[iii] In most cases, the mediator will always meet both the parties to make it more imbalanced and impartial in nature.
[iv] Dwight Golann, Mediating Legal Disputes (2009).
[v] Tania Farrungi, Caucusing in mediation, University of Malta (2016).
[vi] Fred Jandt & Paul Pedersen, Constructive Conflict Management: Asia-Pacific Cases, (1996).
[vii] John Barkai, What\’s a cross-cultural mediator do? A low context solution for a high context problem, 10 Cardozo J. Conflict Resolution (2008).
[viii] Ibid.
*Pratyush Singh is a First Year student at The National Law School of India University, Bangalore.