Recently, I overheard a man speaking with some of his cohorts at one of the ever-popular international arbitration conferences in New York. He and his other blonde friends were discussing how it's really unneccessary to take culture into consideration during negotiations with "foreigners".
Really????
Sadly, my younger, blonder and hopefully more enlightened self let it slide. These were speakers at the conference, after all - experienced practitioners from whom I should learn. Far be it from me, the less experienced jobhunter, to correct these distinguished gentlemen.
Months later, these comments still grate on my nerves. If these are the people who we look to for insight and training on international dispute resolution, what hope is there?
In cross-cultural dispute resolution, the discussion of parties’ interests and values may be inhibited by language and/or cultural differences. Therefore, in order for neutrals involved in cross-cultural disputes to work effectively towards a mutually rewarding agreement, knowing the relative language(s) is not always enough. Active listening is also a crucial element to effective dispute resolution in these settings. An understanding of verbal and non-verbal communication during cross-cultural negotiation encourages successful dispute resolution. In this post, I will examine how a neutrals' knowledge of these of these methods of communication will enhance the effective practice of dispute resolution, as it will provide neutrals and disputants (1) a greater understanding of their own and others' needs and interests, (2) methods for responding to or countering others' positions, and (3) creating a negotiation environment that promotes mutuality and settlement.
When peoples’ personalities are shaped in different environments, circumstances and cultures, their communication methods will, almost necessarily, be different as well. Cultural differences often cause miscommunication and conflict, based on the parties’ divergent perceptions. Distinctions in “cultural norms constitute the main factor accounting for variations in nonverbal behavior across cultures and the intercultural negotiation presents a context in which nonverbal communication misunderstandings are prone to emerge.” Attention to nonverbal behavior can be used to overcome barriers to communication in cross-cultural negotiations. In contrast, neglecting unspoken cues “can lead to misunderstanding, unhelpful emotions, mistrust, sloppy thinking, and poor outcomes.”
If the neutral is prepared to identify and address the cultural distance between the parties, she may be able to show parties that they can work together, despite their differences. Prior to the commencement of the proceedings, the neutral must identify tools which can be used to ensure that the process is most beneficial for these parties and the neutral is knowledgeable about the parties’ cultures, how they may interact with one another and how she should interact with them.
To do this, the neutral must (1) work with the parties to develop a process that will allow for a viable agreement measured against each party's own cultural standards; (2) encourage the disputants to work to understand each other’s different perceptions; and (3) ensure that each party actively participates in the recognition, development, and resolution of issues.
First, the dispute resolution process should be adapted to the cultures of the parties involved. The neutral should research how and why each culture uses mediation, conciliation and/or arbitration, as this will aid in understanding how they should adapt the process to encompass the expectations of each culture. Logistics and other resources should also be adapted to meet the needs and interests of the parties. For example, the use of co-mediators or an arbitral panel might assist in identifying cultural, legal, and administrative issues presented in the dispute. If there is more than one neutral involved, each possessing different language skills, cultural comprehension and international accessibility, there may be a higher likelihood that cultural misperceptions will be addressed and remedied.
Next, the neutral must ensure that both parties are able to participate in the dispute resolution process, despite their differences. The rule of law for each culture involved in the dispute will most likely affect the resolution process. The neutral must be trained and well-versed in parties’ conflicting legal backgrounds and the perceptions/expectations that they will hold as a result of these systems. Scheduling multiple sessions might provide one party with the time to check with those in the community as to the feasibility of possible resolutions. Reliance on e-mail communications for exchanging settlement offers might allow for parties to avoid "losing face" in person. Co-mediators or arbitral panels could also help with deconstructing barriers set up by language and cultural differences.
Finally, the neutral must be cognizant of different cultural perceptions of how disputes should be settled: is an apology important? Or is it better for the parties to part ways at the conclusion of the process? This may depend on the parties’ cultural perceptions of what “settlement” should entail. Further, new perceptions can be learned by focusing on shared values and interests and the development of empathy.
The neutral must also become acutely aware of her own perceptions of the parties she is working with, based upon the cultural distance that may exist between the parties and the neutral. As it is integral to the dispute resolution process that the neutral remain just that, neutral, she must identify early on any misperceptions she may have about parties’ values, communication styles, etc.
Building trust in the negotiation process, and in the neutral, can assist in easing tensions caused by misperceptions and aid in resolution. The neutrals ability to identify party perceptions and to deal with them effectively is essential to the success of any negotiation, but especially those involving cross-cultural differences.
So there.
Jensen Zhao, The Chinese Approach to International Business Negotiation,
Journal of Business Communication, Vol. 37 Issue 3, pp. 209-237, 212 (July 2000).
Jensen Zhao, The Chinese Approach to International
Business Negotiation, Journal of Business Communication, Vol.
37 Issue 3, pp. 209-237, 212 (July 2000), citing R. Fischer
& S. Brown, Getting Together: Building a Relationship That
Gets to Yes, p. 84 (Houghton Mifflin 1998).
I am happy to report that the team from my alma mater, Pepperdine Law School, won the prestigious Willem C. Vis (East) International Commercial Arbitration Moot in Hong Kong.
