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<xTITLE>Unravelling Cultural Diversity in Mediation</xTITLE>

Unravelling Cultural Diversity in Mediation

by Malcolm Sher
August 2015 Malcolm  Sher
Born in Zimbabwe and educated in England, and after forty years practicing law in the U.K and California, I transitioned to full-time mediating some 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 so-called “cultures” 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 call this “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 because they encourage us to think broadly. Aren’t African Americans, Native Americans, Chinese Americans, Mexican Americans, men or women, LGBTQ, young, old, religious, wealthy, poor; all people who may live within our own shores, nevertheless culturally different? Doesn’t their “view of the world” in fact “program” their minds, influence their thinking 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?

I believe mediators who are culturally aware become sensitive to how the thinking of people of diverse cultures influence the way those people view personal and property rights and obligations, evaluate facts and go about resolving disputes or reach impasse in their general lives and 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, culture, ethnicity, gender or socio-economic circumstances, is likely to play an important part in resolving 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 he has the right to physically embrace the young, pretty subordinate, or as in one recent case of mine, is it a sense of superiority or merely an overactive sex drive that emboldens the white female manager to proposition the African-American female co-worker? Does it really matter? It might have nothing to do with culture in the “foreign” sense.

Candidly, I am frequently surprised at how little attorneys actually know about their clients as people. That initial telephone conversation and even the mediation brief often 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.

 For both mediators and advocates, there is much to be learned about so-called “cultural diversity” from the Internet through articles, blogs and well-regarded treatises. Yet, many writers offer little more than “stereotypical” or patronizing observations with no recognition or validation of what I refer to above as “sub-cultures” within any given culture.  For this reason, I ask the reader to think in terms 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 pre-condition and help me as I prepare for the mediation session.  Richard D. Lewis writes one treatise, which I frequently consult and have found particularly helpful in my work as a cross-cultural mediator,  is  “When Cultures Collide.” Written in the context of how people from different parts of the world deal with conflict, it not only addresses the subject in detail, provides charts and diagrams, but also lists the major countries of the world and discusses their history, political, ethnic and racial make-up, behavioral traits of its people and what to expect when negotiating, including do’s and don’ts.

Much of what has been written on the subject of culture and conflict discusses so-called “individualist” and “collectivist” cultures. Dutch psychologist 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 that tend to be self-reliant and competitive.  Scholars observe that these cultures tend to be very rules-driven, where laws spell out what is and is not acceptable, both in the civil and criminal contexts. In mediation sessions, I have personally observed Anglo-American as well as French, British or South African parties and their lawyers, typically shake hands, introduce each other by their first names and participate in “ice-breakers” such as making “small talk.” However, this doesn’t usually last very long. It is not uncommon for these disputants and their lawyers to 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.  Language is colorful, loud and forceful. The speaker will lean towards those being addressed. Eye contact among disputants and lawyers is generally considered appropriate, even a sign of sincerity and openness. The listeners may interrupt, often defensively “grandstanding” or with unfiltered observations, asking direct questions or tabling demands. Body language, including folded arms, leaning back in the chair or “staring down” are used to message defensiveness, disbelief or boredom and intimidation, respectfully. Long periods of silence may indicate discomfort, even concession.

At the other end of Hofstede’s spectrum, are so-called “collectivists” who tend to 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. On the whole, they focus less on rigid rules or standards of behavior and more on how the behavior, itself impacts group harmony and solidarity, with the preservation of relationships being of paramount concern. This attitude is based on a sense of communal duty and responsibility to the family or 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 often much formality of process. In my mediations 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 gestures. 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 cultures, e.g. in mediating disputes involving any of the Arab cultures, it is never appropriate to greet by touching an Arab woman, or when seated to cross one’s legs so that the soiled soles of one’s shoes are exposed, since this is uniformly taken as a sign of disrespect.

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 is expected. In a Sikh mediation, I was not surprised when the men participating arrived in traditional dress with turbans and even carrying daggers. The food, which I provided at that mediation, was strictly vegan and undoubtedly showcased my efforts to please. My pre-mediation phone call to one of the attorneys, who was also Sikh, paid dividends, as did some quick and easy Internet research. As an “improvisational” mediator, I attempt to learn as much as possible about parties’ styles in pre-mediation telephone conversations and shift my approach accordingly, always remaining flexible to accommodate the parties’ needs and wishes.

Usually, negotiation at mediation among most so-called “individualists” follows a pre-determined and predictable model. Starting with fact gathering, it moves to issue clarification and then to identifying needs and interests, hopefully ending with the generation and selection of settlement options. How the options will affect the individual parties is usually the most important issue. Among “collectivists,” however, a different model is often preferred. Being more “relationship-oriented,” time is initially spent establishing a basis of trust in the mediator and each other, upon which to build negotiations. Having tea or a light meal with an adversary is often customary, shows courtesy and helps build trust. Accordingly, during many of my mediations I serve food, having first ascertained whether any of the parties have dietary constraints.

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.  The mediator must not be seen to “judge” the parties, merely to acknowledge that some difficulty exists in interpreting their intentions.

Negotiation in the context of mediation is truly a dance, and the mediation is not over until a compromise is reached or someone stops the music. 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.  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 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.

Consideration must also be given to people 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.” 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 that sub-culture, as is the importance of benefiting the extended family and I was able to prevail upon the disputants to consider what the deceased matriarch of the family would think, were she to be observing from on high their squabbling over the family home and their squandering of her legacy and limited resources. The recurring retorts of “Amen” proved my point.

Close-knit Latino families, often with multi-generational members living together or owning and operating a business together, 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 thinks is right. Even if present, his silence may not indicate agreement but rather thoughtfulness and contemplation. In other words, in many cultures, there are other stakeholders who need to be consulted and this may take time or 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 should encourage counsel and the parties to exercise patience and allow the process to play out.

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 limit our understanding of “culture” to mean only people from different countries, we risk

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 culture as the disputants or their advisors. Indeed, I believe that to sometimes be counter-productive. Rather, both must identify and address their own cultural and gender perceptions, be curious about the other’s and discourage 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. 

 



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