Stay up to date on everything mediation!

Subscribe to our free newsletter,
"This Week in Mediation"

Sign Up Now

Already subscribed No subscription today
<xTITLE>Embracing "Cultural Diversity" in Mediation</xTITLE>

Embracing "Cultural Diversity" in Mediation

by Malcolm Sher
August 2015 Malcolm  Sher

Born in Zimbabwe and educated in England, I practiced law for almost forty years in the U.K and California, transitioning to full-time mediating six years ago.  More than seventy percent of my mediations involve parties who were born, raised, educated or lived somewhere other than the U.S. or are younger generations of people who were.  Their differing “cultures” often play a big part in “who” they are and how they may behave in the face of conflict. When they become involved in disputes, they often bring to the settlement negotiations, traits that might have initially caused or contributed to the dispute, are fueling it’s continuing momentum, or may significantly influence any result at mediation. I refer to this as “cultural overlay.”

What is “culture” anyway? Webster defines culture as the “customary beliefs, social forms and material traits of a racial, religious or social group.” Dutch psychologist Geert Hofstede, defines culture more generally as “the collective programming of the mind that distinguishes the members of one group or category of people from another.”

These definitions are enlightening and encourage us to think broadly. Aren’t African Americans, Native Americans, Chinese Americans, Mexican Americans, men, women, LGBTQ, young, old, religious, wealthy, poor; all people who may live within our own shores, nevertheless culturally different from one another? Does their differing “view of the world” in fact “program” their minds and distinguish them from other people? Do their individual and collective histories and experiences cause them to think differently? When in conflict, might they identify goals, needs and interests that diverge from those of so-called “white Anglo-Saxon Protestants?” In short, don’t they belong to “sub-cultures?”

As an experienced mediator, I believe mediators who are culturally aware become sensitive to how the thinking of people from diverse cultures influence the way they view personal and property rights and obligations, evaluate facts and go about day-to-day negotiations, resolve disputes, or reach impasse in the course of mediation.  Years living in Africa, the U.K., the U.S. and travelling widely elsewhere, have raised my own consciousness and cultural awareness. Thus, when initially contacted by an attorney representing a party in a potential mediation, one of my first tasks is to seek information about “who” their client is and what about his or her background, ethnicity, gender or socio-economic circumstances, is likely to influence their ability to resolve or the dispute. Will one plaintiff’s wealth engender a sense of entitlement, or another’s relative poverty cause him to expect a handout?  How will a Depression-era, blue-collar, small business owner view the claim of a young “techie” with a big paycheck?  What makes the older male supervisor believe it is appropriate to physically embrace the young, pretty subordinate in the workplace?  As in one recent case I mediated, was it a sense of racial superiority, the need to control or merely an overactive sex drive that emboldened a white female manager to allegedly proposition the African-American female co-worker?  Was this behavior just another instance of what has come to be termed, “corporate culture?”

I am frequently surprised at how little attorneys know about their clients as people, what actually influences their thinking and how they will approach the mediation process. Often, that initial telephone conversation and even the mediation brief, reveal little, if anything beyond the attorney’s view of the facts, understanding of the law and why their client should get lots of money or pay nothing. “I never even thought about the ‘cultural thing’ or asked my client,” is not an uncommon response to my question.

 As a mediator, I am fascinated by cultural overlay. The Internet is replete with articles and blogs and there are well-regarded treatises on the subject of how culture impacts conflict. Unfortunately, many writers offer little more than “stereotypical” observations with no recognition or validation of what I refer to above as “sub-cultures” within any given culture.  Because of the risk of stereotyping, I prefer to think of a “cultural framework,” a term I believe that was used if not coined by Michelle LeBaron, professor of law at the University of British Columbia, who has written widely on this subject. I use this framework on which to attach some of the traits or behaviors, which I have encountered in hundreds of mediations and which help me as I prepare for the mediation session. I am careful to recognize that not people within any given culture or sub-culture will exhibit such traits and that education, affluence or poverty, generational differences and other considerations will tilt the framework.  Richard D. Lewis in,  “When Cultures Collide” addresses how people from different parts of the world negotiate in business and deal with conflict. He provides charts and diagrams, and in chapters dealing with the major countries of the world, discusses how their history, political, ethnic and racial make-up, influences behavior and discusses what to expect when negotiating, including advice on do’s and don’ts.

Much of what has been written on the subject of culture and conflict starts by identifying so-called “individualist” and “collectivist” cultures. Geert Hofstede, in “Culture and Organizations: Software of the Mind,” talks of people from North America, Canada, Australia, New Zealand, South Africa, the United Kingdom and Northern and Western Europe as “individualists” whose social pattern of negotiation emphasizes the individual’s personal preferences, goals, rights, needs and interests, all of which tend to be self-reliant and competitive.  He and other scholars observe that these cultures tend to be very rules-driven, with laws spelling out what is and is not acceptable, in both the civil and criminal contexts.

At the start of mediation sessions, I have observed how customary it is for Anglo-American as well as French, British and South African parties and their lawyers to shake hands, introduce each other by their first names and participate in “ice-breakers” such as making “small talk.” However, once that is accomplished, it is not uncommon for these disputants and their lawyers to quickly insist on “getting down to business,” because in most individualist cultures, “time is money.” In both joint sessions and private caucuses communication tends to be direct and to the point, leaving little unsaid.  Language can be colorful, loud and forceful. The speaker will usually lean towards those being addressed. The listeners may interrupt, often defensively. They might “grandstand” with unfiltered observations, ask direct questions or make demands sometimes “staring down” the opponent.  Body language is telling.  Eye contact among disputants and lawyers is generally considered appropriate, even regarded as a sign of sincerity and openness. Arms folded, may signify defensiveness; leaning back in the chair or a wry half-smile signal disbelief or distain; looking down at the table or long periods of silence may indicate discomfort, embarrassment, even concession.

At the other end of Hofstede’s spectrum, are so-called “collectivists” who predominate in much of central Africa, the Middle East, (excepting Israel, which seems to be a hybrid), most of Asia, South America, Mexico and parts of Eastern Europe. Their framework focuses less on rigid rules or standards of behavior and more on how the behavior, itself impacts group harmony and solidarity. For them, the preservation of relationships is of paramount concern. This attitude is based on a sense of communal duty and responsibility to the family, to the company’s employees or to society in general.

In the countless mediations I have done with disputants from the Middle East, Asia, India, parts of Africa or South and Central America, there is typically much formality of process. I have encountered Japanese, Thais and Indians whose greeting includes a bow, “wai” (a prayer-like gesture with the hands together in front and head slightly bowed) or similar gesture. As the mediator, I will respond accordingly, both as a sign of respect and certainly to recognize and accord status to an older person or one in authority. Hand shakes, except among close friends and relatives may be frowned upon in some of these cultures. As an example, in mediating disputes involving people from any of the Arab cultures, whilst more “modern” men or those who have had long-term relationships might shake hands, it is never appropriate to greet an Arab woman by touching her. When seated, it is considered disrespectful to cross one’s legs so that the soiled soles of one’s shoes are exposed.

  I have learned and practiced the art of exchanging business cards, which among Asians, are offered and accepted with two hands, carefully scrutinized and respectfully commented upon, but never written on. Offering the chair on the mediator’s immediate right to the CEO or highest officer in most Asian or Arab corporations may be expected. In a Sikh mediation a pre-mediation phone call to one of the attorneys, who was also Sikh, paid dividends, as did some quick and easy research on the Internet. Thus I was not surprised when all the men participating arrived in traditional dress wearing turbans and even carrying daggers.

In my experience, the actual negotiation among most so-called “individualists” often follows a pre-determined and predictable model. Starting with fact gathering, it moves to issue clarification, then to identifying needs and interests, hopefully ending with the generation and selection of settlement options.  Among “collectivists,” however, a different model is usually preferred.  Being more “relationship-oriented,” time is initially spent establishing a basis for trust in the mediator and each other, upon which to build negotiations.  Following introductions and exchange of cards, serving tea or a light meal, even to an adversary is often customary, shows courtesy and respect and enhances trust.  Accordingly, during many of my mediations I serve food.  Having read that many Sikhs are vegan, I provided vegan food at the Sikh mediation and this undoubtedly showcased my efforts to respect and please the parties.   

Many people from Middle-Eastern and other cultures, less accustomed to the Anglo-American preference for written agreements, often do business on a handshake. The vagaries of such a deal may even have brought about the current dispute. The subtleties, or “fine print,” may have been ignored or overlooked so that when a dispute arises, even trying to figure out what the deal was becomes challenging.  Yet, a mediator must not be seen to “judge” the parties for their oversights, and to maintain their trust and confidence might merely acknowledge that some difficulty exists in interpreting their intentions and encourage them to talk it through.

At some point, the mediation session will hopefully progress to the stage of negotiating demands, offers and counter-offers.  In the context of mediation, this is truly a dance, and the mediation is not over until a compromise is reached or someone stops the music.  In many cultures and sub-cultures, decision-making takes time and often follows tradition. For example, hypothetical issues may be raised which approximate those in the dispute. These issues may be discussed and even appear resolved, only to be later revisited as part of a more comprehensive agreement. In a memorable mediation, a Chinese litigant was accused of trying to re-negotiate issues that everyone assumed to have been settled, but which she was only “thinking about” as possible concessions in the larger picture. Her distinct nod of the head did not mean she agreed with what was said or accepted what was offered; rather it meant, “I hear you.” When this happens, no one should immediately assume that “bad faith” tactics are being employed to taint the negotiations.  Chinese, Thai and Japanese cultures are commonly thought to be conflict-resistant, yet I have observed strong-willed even hard-nosed negotiating strategies. Demands and offers are seldom communicated direct; instead they usually go through the mediator, so as to avoid a party being  seen to “lose face” by the response.

Consideration must also be given to people from cultures with a consensus-based or familial attitude toward negotiating. They will frequently seek the guidance and blessing of a patriarch, matriarch, uncle or older sibling. Such is often the case in negotiations involving Native Americans, who take pride in their heritage and value and respect the opinions of elders as “keepers of wisdom.” Similarly, in a memorable mediation involving a dispute among an African-American family over inheritance rights, I knew that spirituality and strong religious beliefs are generally highly valued in the sub-culture, as is the importance of benefiting the extended family. At the risk of appearing patronizing, I calmly suggested the disputants consider what the deceased matriarch of the family would think, were she to be observing from on high their squabbling over the family home, the loan on which it had taken decades for her to pay off. I implored them not to squander her legacy through costly litigation. The recurring retorts of “Amen” acknowledged and validated my point and the dispute resolved.

Close-knit Latino families often have multi-generational members living together or owning and operating a business together. They may enter the mediation knowing that whether, and on what terms the dispute settles, may depend less on how their loud or dramatic presentation impresses the opposition, and more on what their uncle or grandfather, to whom consideration must be given, thinks is right and proper.  If present, but seemingly not actively participating, his silence may not indicate agreement, but rather thoughtfulness and contemplation. Similarly, I have observed that in the traditional Indian culture, the wife, who with her husband is involved in a dispute with third parties, may defer to the views and wishes of her father-in-law, in whose house she and her husband are living. The husband, too, may be bound by that tradition. In other words, many cultures have “stakeholders” who need to be consulted and whose decision could impact the outcome of the mediation.  This process of seeking approval may prolong the mediation session or even require a second mediation session.  Anyone anticipating a quick “yes” or “no” response should not view this as a delaying tactic but rather as proper, orderly and respectful. To avoid derailing the process, the culturally sensitive mediator will encourage counsel and the parties to exercise patience and allow the process to play out.

Cultural differences often result in behavior that is interpreted by someone of a different culture as strange, if not insulting or hostile and can create friction and frustration, thereby hindering the mediation process. As mediators or advocates, we cannot succeed as peacemakers if we fail to understand the impact “cultural overlay” has on the resolution of conflict, or where, through ignorance, we limit our understanding of “culture” to mean only people from foreign countries, and forget about or ignore the subtle nuances of sub-cultures.

            To be successful, the mediation model of the U.S. and other individualist cultures must often be modified to accommodate the diverse cultural backgrounds of disputants. Like diplomats, mediators need not be of the same race, religion or national origin as the disputants or their advisors. Indeed, I believe that to sometimes be counter-productive. Rather, we must identify and address our own cultural and gender perceptions and biases and be ever curious discouraging attitudes that are judgmental or stereotypical, in order to avoid creating barriers, and instead foster the credibility and trust that is necessary for successful mediation.

Biography


Malcolm Sher, based in the San Francisco Bay Area, is a full time mediator who has resolved hundreds of real property, business, partnership, trust/estate, professional liability and employment cases, many of which involve significant emotional issues. In the majority of his cases, the disputants are from diverse cultural and ethnic backgrounds. A law graduate of the University of London, he is admitted in both California and the United Kingdom. For eleven years, he authored the Annual Supplement to CEB “Real Property Remedies and Damages” and now co-authors the ADR section of that treatise. 

 



Email Author
Author Website

Additional articles by Malcolm Sher