Mediation
ComplianceLegalFebruary 21, 2022

How do cultural differences influence mediation?

By: Vasantha Stesin

Mediation outcomes can vary and differ in complexity due to cultural differences. Different cultures have set values and beliefs. When these come into play, mediators are challenged to draw on additional skills to assist parties reach a mediated outcome

Cross-cultural situations can seem daunting for some practitioners and seen to be an advantage by others. This highlights the importance of being culturally sensitive. Legal rights present an added difficulty.

Both arbitration and litigation will unavoidably end in a win-lose situation due to the adversarial nature of such proceedings. Successful mediated outcomes are intentionally within the parties’ control and do not take the decision completely away from either party, unless there is an illegality involved. Once again, significant cultural differences may alter the effectiveness of a mediated outcome.

Intercultural disputes, internationally or domestically, require a mediator to take cultural differences into consideration. Mediation is primarily focused on effective communication with an eye to ensuring there are no legislative breaches. Communication methods differ globally, depending on the historical development, legal systems, ethnic and cultural backgrounds of each jurisdiction.

When handling cultural aspects during mediation, mediators should be aware of their bias which is defined as a prejudice for or against something.

Implicit bias describes when we have attitudes towards people or associate stereotypes with them without our conscious knowledge. A commonplace example of this is seen in studies that show that we frequently associate criminality with indigenous people without even realising that we are doing it. Mediators are not exempt from this trap of implicit bias. It is not always possible to overcome implicit bias but increased self-awareness and continued personal and professional growth are always worthwhile goals!

What mediators do with their bias can have a negative impact on others. It can also impact the mediation and tilt the playing field for disputants.

If the mediator is unable to or fails to ask questions to assess their bias and ensure inclusivity it can hinder the success of mediation for all parties involved. Implicit bias is inevitably present during the mediation. Awareness of it makes us more conscious of any potential unconscious bias and this knowledge will inevitably empower mediators in dealing with disputants, throughout the process.

Two of the most common problems identified in intercultural disputes are the communication barrier and culturally-driven interests.

The difficulties of communication are intensified when communication takes place across cultures. This is due to the basic problem of translation, or the difficulty faced by non-native speakers catching nuances when discussions are in a foreign language. What is lost in translation may be a loss for a mediated outcome.

Language as a social instrument reflects a culture. Consequently, the lack of the distinction between Sie/Vous and Du/Tu in the English language, or the much finer touches of respect in the Japanese language reflect those societies’ attitude to rank and hierarchy. The test of word association clearly shows that the meaning of words is culturally defined; whilst for basic concepts, such as food, associations across cultures are still rather similar, associated words may vary broadly for more complicated concepts. As a matter of fact, some of the words may prompt positive associations in some cultures and negative ones in others. This is of crucial importance from the point of view of mediation since the outcome generally takes the form of a written agreement.

In addition, different attitudes to verbal and non-verbal communication are likely to complicate the communication process further: the direct, frank, and confrontational style prevalent in individualist, low-context societies can easily be misunderstood as rudeness and lack of respect by those from collectivist societies. What may be insignificant for some can be deplorable for others.

This blog has been produced subsequent to an academic paper and presentation on the same topic for the Australian National Mediation Conference 2021.

As part of the research into the topic, the writers surveyed a pool of mediators on three key questions regarding culturally different parties. The technology used allowed a single word response to be fed into a central repository which then reflected all the responses to the question using a word cloud. Visually, many words play on the screen, some growing in size as the number who had the same response increased. Finally, one word stands out as being the majority response.

The first question asked was, whilst conducting mediation, in what circumstances would mediators perceive cultural differences? The results ranged from language, dress attire, accent, and skin colour. The most significant response was ‘language’. However, there is really no single way to perceive cultural differences. Therefore becoming aware of implicit bias is crucial. We, as mediators, have a duty to develop and grow in self-awareness. Consequently, objectives of the mediation and the range of acceptable outcomes differ between participants. As culture may well shape the values of the group as a whole, and individual parties, culture shapes objectives and acceptable outcomes. The acceptability of a result is likely to be shaped by values, i.e. notions of right or wrong. Additionally, values are shaped by history and culture, which may seem reasonable to an outsider mediator. Therefore, it must be recognised that parties from different cultures are likely to enter a mediation process with differing objective functions.

In addition to these hinderances, mediators may also be the reason disputes are unresolved. When the mediator is clearly culturally different from one or both parties, the question arises as to what extent the mediator can be culturally “neutral”. This issue arises when the mediator relies on their own assumptions and values during the process of mediation. The survey’s next question posed to survey participants was, when conducting a mediation, if you are monolingual, what is your reaction to conducting a multilingual mediation with the use of interpreters? ‘Challenge’ was the most prominent response. Where parties do not speak English (or whatever the dominant language of the land is) fluently, a mediator may be able to speak the same language as a particular party, perhaps creating a potential bias. However, in situations where a mediator cannot understand either party, an interpreter will be required. The challenges are accuracy of information, lack of comfort with information being translated and absence of relationship. Another challenge with utilising an interpreter may be that person’s lack of training in cultural aspects, hence creating potential issues. If the exclusive aim of the mediation is to facilitate the end of a conflict, the mediator’s values should not be considered as relevant. But they can creep into the process. Neglecting such issues may favour one party over the other and unnecessarily complicate the finding of a solution.

Are mediators able to detach themselves from their own cultural assumptions and values? In the survey’s final question, mediators were asked when conducting a mediation, if parties are culturally different to them, what is their reaction? Initial survey responses first highlighted the word curiosity and then interestingly shifted to avoidance. It shows that some mediators do not want to deal with the cultural differences of the disputants and would prefer to ignore or avoid cultural nuances. Around the world, people communicate their intentions not only through the words they speak, but through tones, gestures, and body language. These signals are often made and interpreted subconsciously.

Handling mediations with cultural overtones requires specialised training and experience in order to recognise one’s own cultural blinders and develop cultural awareness.

Mediators may resort to interpreting parties’ motivations through the lens of their own culture rather than grappling and empathising with the cultures of the parties. Alternatively, mediators may ignore rather than explore their values and assumptions. This attitude may lead mediators to “negotiate with themselves” and jeopardise a positive mediated outcome. There is an inherent danger that parties may accept an agreement that has somehow been ‘imposed’ on them, irrespective of their positions and identities.

Interestingly for some Aboriginal cultural groups, interruptions are taken as a sign of disrespect and rudeness. A mutual expectation that each party will be able to speak without interruptions might need to be established in the introductory remarks of the mediator. Overt intervention may not always be appropriate.

Although there is no single way of dealing with disputes involving cultures, there are ‘techniques’ to effectively settle cross-cultural conflicts. This can range from a pre-mediation cultural assessment of the conflict to preparation for the mediation which would involve the mediator consciously improving self-awareness and knowledge. In order to succeed internationally, mediators must understand the communication and negotiation techniques of each culture in the dispute. Mediation as a worldwide dispute resolution tool should motivate mediators to broaden their knowledge and improve their skills in cultures where “we both win” is critical. It is crucial that a mediator is aware that culture will not be the same between disputants and consciously develop and improve their knowledge and skills in order to handle the process, under these circumstances. If the mediator fails to consider cultural factors, where these are a crucial element of the whole, disputants may have a very poor experience of the mediation process. Such effort will inevitably improve mediation outcomes, given that “if the assumptions of disputants regarding the role of the mediator are different from the mediator’s own views, the latter may employ tactics that are ineffective, or even offensive”. Knowing oneself must therefore be a prerequisite for any mediator.

Vasantha Stesin
Principal Lawyer, Mediator and Arbitrator at Stesin Legal
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