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. As such, intercultural disputes, internationally or domestically, require a mediator to consider cultural differences.

In these situations, the difficulties of communication are intensified. This is due to the basic problem of translation, or the difficulty non-native speakers face catching nuances when discussions are in a foreign language. What is lost in translation may be a loss for a mediated outcome.

The communication barrier and culturally-driven interests

Different cultures have set values and beliefs, and language as a social instrument reflects a culture.

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.

Indeed, handling mediations with cultural overtones requires specialised training and experience to recognise one’s own cultural blinders and develop cultural awareness. 

A recent survey undertaken by Vasantha Stesin questioned if mediators would be able to detach themselves from their own cultural assumptions and values. Initial survey responses first highlighted the word curiosity and then interestingly shifted to avoidance, showing 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 also through tones, gestures, and body language. These signals are often made and interpreted subconsciously, causing mediators to interpret 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.

A mediator must be aware that culture will not be the same between disputants and consciously develop and improve their knowledge and skills to handle these circumstances. If the mediator fails to consider cultural factors, which 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.

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, involving the mediator consciously improving self-awareness and knowledge. 

To succeed internationally, mediators must understand each culture's communication and negotiation techniques in the dispute. As a worldwide dispute resolution tool, mediation should motivate mediators to broaden their knowledge and improve their skills in cultures where “we both win” is critical.

This article was written by Vasantha Stesin (principal lawyer, mediator and arbitrator) and Trinh Vo (Intern) of Stesin Legal and has been published with permission. Read more at Wolters Kluwer Expert Insights.

Access now thousands of other resources like this, and more!

This article is just a sample of CCH Pinpoint’s in-depth legal research and tools. Get immediate free access to all up-to-date content by signing up for a free trial.

CCH Pinpoint cuts out the noise by providing only relevant legal research and tools, all written by legal professionals, for legal professionals. It has been designed to deliver on-point material with very few clicks:

• 360-degree view of the legislation you are researching
• Regulatory Resources
• Cases
• Commentary
• Practical Tools related to legislative provisions

Learn more about CCH Pinpoint.