Cross-Cultural Mediation Process Skills

Robert A. Creo and Tracy Allen

September, 2003

On September 12, 2003, IAM Fellows Bob Creo and Tracy Allen, in a panel moderated by IAM Fellow Jerry Roscoe, presented a program on this important and timely topic as part of the American Bar Association Section of Dispute Resolution conference on "International Dispute Resolution by the Rules" in Washington, DC.

Here is the outline of their presentation.

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INTERNATIONAL DISPUTE RESOLUTION BY THE RULES
AMERICAN BAR ASSOCIATION
SECTION OF DISPUTE RESOLUTION
12 September 2003
The Ritz-Carlton Hotel
Washington, DC

CROSS-CULTURAL MEDIATION PROCESS SKILLS
2:30 p.m.

Prepared By:
Robert A. Creo, Pittsburgh, Pennsylvania
Tracy Allen, Southfield, Michigan

I. Jeswald W. Salacuse, Ten Ways That Culture Affects Negotiating Style: Some Survey Results, Negotiation Journal, Volume 14, Number 3, Page 221 (July 1998)

- Abstract: Study observed "the way persons from different cultures conduct themselves in negotiation sessions".

- Conclusion: Culture can definitely influence negotiating style.

- Several Concepts of Culture (See article #9)

"Socially transmitted behavior patterns, norms, beliefs and values of a given community."
People thus use the elements of their culture to interpret their surroundings and guide their interactions with other persons.

- "Culture is the ‘Silent language’ that parties need in addition to the language they are speaking if they are truly to communicate and arrive at a genuine understanding".

- 10 factors in negotiation process that seem to be influenced by a person’s culture and sometimes appear to vary between two polar extremes:

1. Negotiation goals (Contract or Relationship?)
2. Attitudes to the negotiation process (Win/Win or Win/ Lose?)
3. Personal Styles (Formal or Informal?)
4. Styles of Communication (Direct or Indirect?)
5. Time Sensitivity (High or Low?)
6. Emotionalism (High or Low?)
7. Agreement Form (Specific or General?)
8. Agreement building process (Bottom up or Top down?)
9. Negotiation Team Organization (One leader or Consensus?)
10. Risk Taking (High or Low?)

II. James K. Sebenitus, Caveats for Cross-border Negotiators, Negotiation Journal, Volume 18, Number 2, Page 121 (April 2002)

Abstract: It shows problems with superficial literature on mediation skills. Summarizes the problems with 3 major fallacies on Mediation Literature.

Conclusion: Cross cultural negotiation involves more systematic differences than body language, etiquette and deportment, such as deeper behavioral traits, organizational decision making processes and forms of corporate and public governance.

1. Problems with Stereotyping National Cultures

- Viewing the world without the aid of stereotypes is difficult. Forming stereotypes is a natural reflex that helps order the overflow of information that barrage people. HOWEVER avoid stereotyping and the "Prototypicality error."

-" You negotiate with individuals, not averages."

- Prototypicality error Tendency to treat people from a given population group as if they would exhibit the group’s most likely tendencies.

2. Overattribution to National Culture

- Nationality often matters when considering someone’s bargaining characteristics but so too does gender, ethnicity, functional speciality and other factors.

- National culture is but one of many "cultures" that can influence bargaining behavior.

Example of many "cultures": Professional/ Social Class/ Ethnic/ Regional/ Organizational/ Corporate/ Politics/ Personality/ Economics/ History/ Language...

3. St. Augustine fallacy: "When in Rome, do as the Romans do".

- While this classic admonition certainly has merit, it is not always a good advice.

- Rather than learning to behave as the "Romans," instead strategies should accommodate the degree of cross-table understanding each side has of the other.

- Do not assume and project your assumption onto your counterpart.

III. Lynne C. D’Amico and Robert A. Rubinstein, Cultural Negotiation When "Setting" the Negotiation Table, Negotiation Journal, Volume 15, Number 4 (October 1999)

- Preparation is fundamental
- Pre-negotiation work is important
- Language to be used: talk-story/ story telling

- Different Cultures shape different goals, expectative and attributions about the other party.

- The Conduct of the Mediator: Power-based v. Trust-based relationship.

- 4 elements must be observed:

- The nature of the dispute
- The influence of cognition
- The underlying relationship
- The definition of an optimal outcome

- Business negotiations and conflict resolution must be treated differently.
It must be analyzed:

- Goals of each party
- Attitudes toward power
- Attitude toward uncertainty
- Individuals view the process as task or as a relationship orientation

IV. Bob Delaney, Techniques for Resolving Cross-Cultural Disputes, available at http://www.mediate.com/articles/delaney1.cfm (2001)

- Techniques:
1. Don’t assume all disputes that involve people of different cultures have a cultural component.
2. Provide a thorough explanation of the dispute resolution process. Never assume that what you are saying is being understood.
3. If feasible, draft documents in the language of all parties.
4. Provide for, or allow for, the use of interpreters.
5. Respect the other person’s point of view.
6. Ask for frequent expansion on points that you are unfamiliar with, especially if they relate to cultural issues.
7. Investigate the cultural norms of the people that are involved in the dispute. It could be a matter of misunderstanding. This is also useful for validating cultural claims.
8. Confront cultural discrimination in the workplace and show no tolerance for it.
9. Highlight the presence of the various cultures at your work and foster understanding through cultural events. Tolerance is built on understanding.
10. Recognize and investigate the cultural differences in the use of body language, emotions and problem solving.
11. Create opportunities for the parties to validate the concerns of each other. This includes the recognition and constructive expression of differences. Likewise, cultural similarities should be creatively sought out and highlighted.
12. Educate those from other cultures on the values and norms of our society, so as to diminish the potential for culture clash.
13. Be patient, flexible and willing to learn.
14. Be creative in fashioning solutions. Think out of the box and encourage input on how things are done "over there."

 

BIBLIOGRAPHY:

BOOKS:

Jeanne M. Brett, Negotiating Globally, San Francisco (2001).

Victoria A. Kremenyuk, International Negotiation: Analysis, Approaches and Issues, San Francisco (2002).

Pat K. Chew, The Conflict and Culture Reader, New York (2001).

Jim McGuigan, Cultural Methodologies.

Lynne C. D’Amico and Robert A. Rubenstein, Cultural Considerations When ‘Setting’ the Negotiation Table, 15 Negotiation Journal 389-396 (October, 1999) ISBN 0748-4256,

Web: http://www.wkap.nl/journalhome.htm/0748-4256

Dialdin, Dania A. and Wall, James A., Third Parties and Culture, 15 Negotiation Journal 381-389 (October, 1999) ISBN 0748-4256,

Web: http://www.wkap.nl/journalhome.htm/0748-4256

Solomon, Richard H., Chinese Negotiating Behavior: Pursuing Interests Through Old Friends, U.S. Institute of Peace Press (Washington, DC, 1999) (paperback $ 19.95) ISBN 1-878379-88-7.

Kopelman, Shirli and Olekains, Mara, "Process in Cross-Cultural Negotiations" 15 Negotiation Journal 373-380 (October, 1999) ISBN 0748-4256.

Web: http://www.wkap.nl/journalhome.htm/0748-4256

Kritek, Phyllis Beck, Negotiating At Aan Uneven Table: A Practical Approach to Working with Difference and Diversity, Jossey-Bass, Inc., Publishers, Paperback 368 Pages, ISBN 0-7879-0254-3

Nowlin, William A., Negotiating Overseas: Differences in Greetings, Space, Time, Communications, Aesthetics, and Religion, Practical Dispute Resolution. 1 (1999): 24 -32 (Published by Cooperative Consortium for Dispute Resolution, P. O. Box 4744, Crofton, MD 21114-4744)

 

ARTICLES:

1. Jeswald W. Salacuse, "Ten Ways That Culture Affects Negotiating Style: Some Survey Results", Negotiation Journal, Volume 14, Number 3, Page 221 (July 1998)

2. James K. Sebenitus, "Caveats for Cross-border Negotiators", Negotiation Journal, Volume 18, Number 2, Page 121 (April 2002)

3. Lynne C. D’Amico and Robert A. Rubinstein, "Cultural Negotiation When ‘Setting’ the Negotiation Table", Negotiation Journal, Volume 15, Number 4 (October 1999)

4. Dania A. Dialdin and James A. Wall, Jr., Third Parties and Culture, Negotiation Journal, Volume 15, Number 4 (October 1999)

5. Shirli Kopelman and Mara Olekalns, Process in Cross Cultural Negotiations, Negotiation Journal, Volume 15, Number 4 (October 1999)

6. Bob Delaney, "Techniques for resolving Cross-Cultural Disputes", available at http://www.mediate.com/articles/delaney1.cfm (2001)

7. Donna M. Stringer & Lonnie Lusardo, "Bridging Cultural Gaps in Mediation", Dispute Resolution Journal, (October 2002)

8. Ileana Dominguez-Urban, "The Messenger as the Medium of Communication: The Use of Interpreters in Mediation", Journal of Dispute Resolution, Volume 1997, Number 1

9. Kevin Avruch, "Culture and Negotiation Pedagogy", Negotiation Journal, Volume 16, Number 4 (October 2000)

10. Colosi, Thomas R., "The Principles of Negotiation," Dispute Resolution Journal, (February/April 2002) Pages 28-31.

11. Dominiguez-Urban, Ileana, "The Messenger as the Medum of Communication: The Use of Interpreters in Mediation," Journal of Dispute Resolution, Volume 1997, Number 1, Pages 1-52.

12. Fazzi, Cindy, "ADR Profile: Sally A. Harpole," ADR News from the American Arbitration Association, Dispute Resolution Times, Page 14, (July-September 2000).

13. Pachtman, Arnold, "Negotiating with the Chinese: Getting to Hao!," Cooperate Counsel’s Quarterly: October 1999l 15(4): Pages 24-31.

14. Rendon, Josefina, M. "When You Can’t Get Through To Them: Cultural Diversity In Mediation." Web: http://www.mediate.com/articles/rendon.ctm?plain=t

15. Bridge, Caroline, "Family Mediation and the Legal Process: An Unresolved Dilemma", New Zealand Universities Law Review, 17(3), Pages 231-253, (June 1997).

16. Haynes, Emily Stewart, "Mediation as an Alternative to Emerging Postsocialist Legal Institutions in Central and Eastern Europe," 15 Ohio St. J. On Dispute Resolution Number 1, 257-284 (1999). Web: http://www.osu.edu/units/law/JDR/JDRHOME.htm

17. Lovel, Ira B., and Brian L. Lobel, "Labor Negotiations and the International Arena," Dispute Resolution Journal, (February/April 2002) Pages 56-63.