Cultural background may affect mediation

Elodie Meuser, an Indianapolis attorney and mediator with The Mediation Option, recalls times when the firm has handled cases involving people from different countries. One case, in particular, resulted in a slightly puzzling outcome.

“I wasn’t personally involved in the mediation – but we had a gentleman who was from Tunisia, and when things seemed to not be going his way, he ended the mediation. Of course that’s what everybody wants when they come to mediation – they want to get their way. But it was a bit unusual that it ended so quickly,” she said.

Mediators say that they must be able to understand cultural differences without making broad generalizations or assumptions.

“As neutrals, we have to make sure that our experiences don’t enter into it,” Meuser said.

Real and perceived differences

We’ve all heard the saying, “As American as apple pie,” but some Americans don’t like apples. Or pie. So to assume that all members of a particular culture share the same values or personality traits would be a fallacy, as attorney and mediator Sam Ardery explained.

Ardery, of the Bloomington firm Bunger & Robertson, said that he does not assume that people from different cultures will necessarily react differently to mediation than anyone else would.

“It doesn’t give them credit for having done their own research about it,” he said.

When Ardery knows that clients come from different cultural backgrounds, he tries to learn about the people before he meets them.

“I do a little more preparation ahead of time and call those people, or call their lawyers and talk to them,” he said.

Some differences are not so much about customs in other cultures, but are more about the value Americans place on certain transactions – like contracts.

“In the United States, we sign a contract, we assume it’s binding. But for some people when they sign a contract, that’s the beginning of the negotiation,” Ardery said.

Doing business at home and abroad
 

Lykins

Dallin Lykins, an immigration attorney at Lewis & Kappes in Indianapolis who has mediated family law cases, has experienced how some cultures have a different view of business relationships.

Lykins was a missionary for his church in Costa Rica for two years, and in that time, he observed an approach to business that is considerably different than the contract-driven American business culture.

“It seemed to me that a lot of their issues they took much more personally. Especially in business settings, everyone was viewed as a friend,” he said.

“Almost every aspect of our lives is based on, ‘We have to form a contract first.’ In Costa Rica, I didn’t notice this as much. It was often, ‘This guy’s my friend, and this should be fine,’ and that was very often successful when a dispute came up,” Lykins said.

Much of what Lykins understands about cultural differences he learned through the process of trial-and-error.

He said his tendency to think, “There’s a problem, you resolve it,” wasn’t necessarily what people expected out of him, especially in family disagreements. “They wanted someone to help them handle the emotional aspects of the dispute.”

In cross-cultural mediations, he said, mediators should take the time to learn about how the specific problem parties wish to address – divorce, for example – may carry different weight in another country.

“You have to do your homework and know about that culture and what to expect, but second, listen to them and know what their background is and what they expect,” Lykins said.

The best way to understand a person’s background is to ask, rather than assume, as reflected in the Pew Hispanic Center’s report called, “When Labels Don’t Fit: Hispanics and Their Views of Identity.” The report, released April 4, stated only 29 percent of Latino or Hispanic people agree that they share a common culture, with 69 percent saying that Latinos in the United States have many different cultures.

Language barriers

Meuser’s firm handled a mediation between a Muslim man and his ex-wife, in which one disagreement concerned a word he asked his daughter to use when referring to his new wife, who was also Muslim.

“What this gentleman wanted was to refer to his new wife by a name that wasn’t familiar to everyone, and the biological mother was concerned that the man’s daughter was calling her ‘Mommy,’” Meuser said. “We did research on the Internet while they were here, and we tried to find out what the meaning was of that word, and we found out that word wasn’t ‘mother,’ but that it was a term for a revered adult female.”

The father hadn’t been able to explain the word – at least not to his ex-wife’s satisfaction. But when mediators explained what they found in their online research, she did not object to the term.

Meuser recalled another instance where language presented some challenges for mediators.

“We also had a Japanese woman here who had bank accounts in Japan, and her husband was relying on her to translate, to say what they meant,” she said. The mediators had no way of knowing whether the woman’s translation of the documents was accurate, so the final mediation agreement was drafted to say that if the husband later found out that she had deceived him about the bank accounts, the case would be reopened.

Cultural impact on closure

The American Bar Association’s Section of Dispute Resolution scheduled a continuing legal education program for April 20, to be held at its annual convention. The program description for the CLE, “When Is A Deal A Deal?  The Impact of Culture on Closure and the Durability of Settlement Agreements,” states that in different cultures, people view fairness, truth and durability quite differently. That’s something Ardery heard about recently at a seminar.

“I was just at an ethics seminar in Cincinnati and they had two people there who were general counsel for large multinational organizations and they talked about situations they ran into where they went into certain cultures where gift-giving was part of the culture,” he said. To Americans, gift-giving in business can be seen as bribing.

“So (while) in the United States no one would legally expect to go and give someone in the government a gift – I’m going to buy you a vacation home, and you pass this piece of legislation – there are some places in the world where that is expected,” he said.

Ardery said that despite any differences between cultures, mediators generally must prove their trustworthiness in the same manner, using the “Trust Equation” set forth in the book “The Trusted Advisor,” by David Maister, Charles Green and Robert Galford.

That equation means mediators must demonstrate credibility, reliability and intimacy – or, how secure the client feels – all over a “denominator” of self-interest, meaning the mediator is motivated by the client’s needs.

“In thinking about that, I think it really applies, whether somebody grew up in the Midwest, or somebody grew up halfway around the world,” Ardery said.•