Waterford, kate --- "Cross-cultural disputes: guidance for Australian mediators" [2017] PrecedentAULA 43; (2017) 141 Precedent 17

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CROSS-CULTURAL DISPUTES: GUIDANCE FOR AUSTRALIAN MEDIATORS

By Kate Waterford

Australia is a multicultural country, in an increasingly well-connected global community. It is accordingly common for mediators to deal with parties from different countries or cultural or linguistic backgrounds. Every participant, including the mediator, comes to negotiations with unique values and interests, informed by their experiences, circumstances and cultural origins. Even individuals from similar backgrounds can have difficulty resolving a dispute, but added complexities arise where the parties do not share linguistic and social communication norms.

Cross-cultural differences may lie behind the substantive issues of the dispute, or arise during the communication process at mediation. A mediator's ability to navigate these cross-cultural spaces can be essential in facilitating resolution of the dispute.

In exploring the challenges faced by mediators in cross-cultural mediation, this article draws on examples from Aboriginal and Chinese cultures, in recognition of Australia’s rich Indigenous origins; and of an age of increasing connections with Asian neighbours. While this article focuses on mediation, the principles apply equally to other alternative dispute resolution (ADR) practices.

Across these two broad cultural themes, there is a great deal of variation in subject matter and style of mediation. Cultural differences between the parties will be but one aspect of the overall dispute.

WHAT IS CULTURE?

The term ‘culture’ is used to describe the values, languages, religious beliefs, social habits and communication codes of a group of people. Through shared experiences over time, members of a cultural group learn about acceptable ways to behave, and appropriate means of communicating their needs and beliefs. Culture is not static, but adapts over time and to changing circumstances.^[1]

Linguistically, culture includes verbal and non-verbal signals in communication. Without explicit statements, a person can convey a great deal about their personal comfort and attitudes; their analysis of the respective statuses of those present; their willingness to negotiate or accommodate; and their views about another party’s remarks. This information potentially has a powerful influence on relationships, and is helpful for mediators to understand.

Cultural groups, especially those defined along geographic or ethnic lines, are not homogenous. Chinese and Aboriginal peoples are made up of an enormous number of diverse cultural sub-groups. Nor are traditional behavioural norms in Aboriginal and Chinese cultures uniformly employed by every individual.^[2]

Some broad generalisations about the Chinese and Aboriginal cultures have been made for this article, but mediators need to be sensitive to the inevitable variation across communities and individuals. Gender, age and individual personality also play a role in informing the way a person behaves and communicates. Culture is just one relevant factor in understanding a party who has come to the table at a mediation.

CROSS-CULTURAL DIFFERENCES AND COMMUNICATION

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.

Any competent mediator must develop strong skills in facilitating communication. This is part of the process of creating and nurturing a dispute resolution atmosphere, in which parties feel respected, and comfortable to speak and listen.

Even when working with translators, critical nuances of meaning can be missed, and lead to a breakdown in understanding. One party might think that they are demonstrating respect and appropriate social etiquette, while the other thinks that they are the subject of a gross insult. Such misunderstandings can create or escalate conflict, and lead to loss of trust, hurt feelings or anger, all potentially damaging to the negotiation process.

For example, in their communication style, Anglo-Saxon Australians tend to be more explicit than Chinese people in expressing their motivations and goals, and may find that their Chinese counterparts tend to ‘talk around’ an issue in a way they find frustratingly ambiguous and indirect.^[3] Whereas two Anglo-Saxon Australians may communicate together comfortably in this frank, to-the-point fashion, a Chinese party could find that negotiating style to be aggressive and adversarial.

Language is a powerful tool, and parties may feel that they are losing power in a dispute by being forced to communicate in a medium with which they are not familiar. Non-native speakers may feel intimidated by the formality and technicality of the language used by speakers of Standard Australian English, especially by lawyers. Dropping jargon, and focusing on clarity and simplicity in language, can help to make such participants feel more comfortable and relaxed.

Language also reflects values and social structures, which can vary enormously across cultures. For example, English has a single word to address a second-person subject, ‘you’, whereas many Asian languages have multiple alternatives, the choice being dependent on the level of respect, deference and familiarity a speaker wants to show to their addressee. A similar effect might be achieved in English through other linguistic structures and body language, but modern Australian culture tends to emphasise social equality, so it can be inappropriate to distinguish overtly between persons of different status in speech or gesture.

A well-known phenomenon of Aboriginal English and traditional Aboriginal language speakers is ‘gratuitous concurrence’, where a listener indicates consent or agreement to a person in a position of authority, even when they do not agree with what is being said (or sometimes when they do not understand what is being asked).^[4] This can pose problems in police interrogations and courtrooms, but also in mediations, where a major goal of communication is to understand the participants' underlying feelings and beliefs about the dispute.

A mediator who lacks an understanding of this linguistic phenomenon risks mistakenly concluding that the parties have agreed on an issue that remains a major source of contention. Open-ended questions, allowing the speaker to state their own point of view in a narrative form, rather than indicate agreement or disagreement to a statement made by another, can be more helpful in drawing out information from some Aboriginal parties.

It is not necessary for a party or mediator to imitate the other culture's communication style to be an effective negotiator. That approach can be ineffective and even undermine the process.^[5] However, an awareness of some cultural nuances and basic etiquettes can assist in gaining understanding, and avoiding offence.

In China, it is often considered rude and embarrassing to display emotions such as anger in a public setting, whereas in Australia to do so might be considered a legitimate way of expressing oneself and relieving tension. A non-Chinese person aware of this sensitivity might benefit from modifying their own behaviour, and also avoid the risk of misinterpreting another party’s calmness as tacit agreement.

Similarly, in many Aboriginal communities, avoiding eye contact can be a sign of respect, and a non-Aboriginal mediator alert to this would avoid making the mistake of thinking it suggests dishonesty or evasiveness.

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. This would not be an unusual requirement: the Law Society of NSW Mediation Guidelines, for example, suggest that mediation procedures should include the right of each party to talk without interruption.^[6]

Cultural explanations should not necessarily excuse ‘bad’ behaviour, where a person's conduct or communication infringes on another person's self-worth and dignity, particularly if it does so in a way that would be contrary to Australian law.^[7]

In summary, there are many cultural aspects to human communication, and these can affect the negotiation process in a mediation. Misunderstandings between the parties can exacerbate conflict. Without necessarily adopting the parties’ means of communicating for themselves, a mediator’s sensitivity to these potential issues can help to prevent and manage the communication issues that might arise.

CULTURAL DIFFERENCES AND THE SUBSTANTIVE DISPUTE

To facilitate a real understanding of the ground between the parties, the mediator might have to investigate the role of culture in the substantive issues in dispute, in a non-judgemental, non-discriminatory way.

Questions specially targeting cultural practices may enable the mediator and parties to understand how they have got to where they are. It might seem obvious to one party why they have acted in a certain way, in line with behavioural expectations from their own cultural group, but the other party and mediator may need to have those reasons explained.

For example, Chinese culture often focuses on the needs of the group (a homocentric or collectivist culture), whereas modern Australian culture often focuses more on the needs of the individual (known as an egocentric culture). This means that Chinese people often take a relational approach, accommodating social relations and feeling obliged to maintain relationships (those close to them through family, business and other networks – their in-group), whereas non-Chinese people might take a transactional one, putting a greater emphasis on their own individual needs and desires.^[8]

A person from a strongly relational culture could feel limited in the choices available to them for resolving the dispute, if they know that their decisions will impact on the people close to them and/or that those people will feel strongly about achieving or avoiding particular outcomes.

The mediator could ask open-ended questions about how the various events have impacted on the parties’ networks, and the opinions of those persons, to draw this information out. Such techniques are useful not only in a cross-cultural dispute: a non-Chinese person might also be keenly aware of the impact of their decisions in mediation on others, depending on their individual circumstances and personality.

Cultural issues can also affect the power balance between the parties, in the substantive dispute and at mediation. Some power imbalances may be impossible to address through mediation, but it is helpful if the mediator is at least aware of how any inequity might affect the dispute.

CULTURAL EXPECTATIONS OF THE MEDIATION PROCESS

The study of mediation and ADR generally is relatively new, but the practice is not. The formally developed mediation models were preceded by thousands of years of less formal ones. Many cultures around the world have traditional forms of mediation to settle discord. This means that cultural groups often differ in their expectations of mediation.

Some studies of the utility of mediation in Australia have looked at how to make use of communities’ pre-existing practices. For example, in the Northern Territory, mediators participated in the ‘Mawul Rom’ project, learning how to employ Indigenous ADR traditions in a modern, cross-cultural mediation setting.^[9] The National Dispute Resolution Advisory Council also supported and encouraged the use of traditional ways to resolve disputes.^[10]

China has one of the best-established mediation systems in the world, but the system differs in many respects to that seen in Australia.^[11] Chinese people who are familiar with that country's mediation procedures may need to adjust their expectations when mediating a dispute in Australia or with Australians.

Suitability of the mediation process

It is thought that the focus within the mediation process on self-empowerment of the parties and flexibility of process, is well-suited to and valued by Aboriginal communities.^[12] With court litigation, Indigenous communities and peoples have experienced pressure to accept solutions or ideas, without necessarily understanding the reasons or implications of the outcome; and without being given an opportunity to come up with their own solutions.^[13]

Similarly, Chinese culture places a high value on harmony and mutuality, rather than on confrontation, and there is generally a preference to ‘save face’ by resolving conflicts privately.^[14] These cultural inclinations potentially make Chinese people receptive to resolving their disputes through mediation.^[15] The Chinese words used to refer to mediation and conflict resolution are looked upon positively, as they imply harmony, unity and ‘making peace’.^[16]

Choice of mediator

The National Mediation Accreditation Scheme (NMAS) Practice Standards (2012 version) requires that mediators do not become involved in relationships with parties that might impair their professional judgement, or facilitate disputes involving their personal connections, ‘except where culturally required’.^[17]

This exception acknowledges the reality that impartiality is not a universal standard in mediation. In many cultures, including many Chinese and Aboriginal groups, it is expected that the mediator will not be neutral and impartial.

In some Aboriginal contexts, there may be a cultural expectation that the mediator be fair, but not neutral; and that they have their own opinions as to the dispute.^[18] The mediator is often a member of the community in which the dispute has arisen, and offers experiential wisdom. In other contexts, parties might prefer that an outside (and possibly non-Aboriginal) mediator, with no community links, be brought in to ensure confidentiality and neutrality.^[19] However, an outside mediator might then need to put special effort into building up trust, being sensitive to cultural reluctance to speak about personal matters with a stranger.^[20]

In Chinese cultures, too, a trusted mediator known to the parties is often preferred by parties to a neutral professional mediator.^[21] A mediator in the Chinese system may take the role of persuading the parties to accept a solution, or side with one party.^[22] They may be expected to have some authority and influence within the social networks to which the disputing parties belong.

Chinese mediators may use symbolic references to family relationships, to remind parties of their duties to achieve a harmonious resolution of their dispute.^[23] The continuation of the dispute might even result in a social loss of face for the mediator, because it would mean that the parties have failed to recognise the mediator’s prestige within the network of relationships.^[24]

This contrasts with most Australian ADR models, in which mediators are trained to support the process of mediation without becoming overly invested in its outcome. A mediator who becomes emotionally invested or tries to impose emotional pressure on the parties to compromise risks criticism for lack of impartiality and professionalism.

MEDIATOR SKILLS

Basic skills for mediators include being able to:

• identify situations where cross-cultural differences pose a potential barrier to dispute resolution;

• consider how such differences affect the balance of power between the parties; and

• consider, in each case, whether it is appropriate to take any steps to manage cross-cultural differences, before or after problems arise.

As mentioned above, a mediator need not understand, or imitate, all the world's diverse cultures – an impossible expectation. However, it can be useful for mediators to be aware of special cultural sensitivities and risks of misunderstanding. Mediators who work repeatedly with particular ethnic or cultural groups can benefit from some study of their customs and values.

Crockett proposes that mediators develop skills that allow them to operate in a wide range of cultural contexts relatively freely.^[25] Suggestions include focusing on being adaptive; seeking to immerse oneself in the participants’ reality; and recognising one’s own confusions and knowledge gaps as they arise.^[26]

Dr Siew-Fang Law, meanwhile, points to a culturally sensitive mediator’s need for self-awareness, an ability to question value assumptions and an ability to accommodate cultural habits in others.^[27]

Culture is fundamentally complex. A mediator who conducts superficial research and then attempts to pre-empt and manage communication problems for the parties could find that their interventions do more harm than good. Practitioners should be careful not to over-generalise information about cultures in which they lack real expertise, which could lead to stereotyping people and losing receptiveness to parties’ behaviour and signals as individuals. The mere fact that a person is of Aboriginal or Chinese or any other cultural background, does not mean that everything they do or say should be interpreted through that lens.

Ojelabi has suggested that it might be desirable to appoint co-mediators, with at least one mediator present from each cultural group.^[28] However, this creates the risk that mediators will find themselves pushed into ‘siding’ with the cultural group they represent, by repeatedly having to explain that group’s conduct. To isolate culture as the primary source of difference between the parties, when there may be many layers, could be limiting.

INVOLVEMENT OF OTHER PARTICIPANTS

Even if all parties have a working grasp of English, it may be appropriate to have interpreters or support people present, to assist in interpreting culture and nuance.

Cross-cultural liaison officers have been used to strengthen access to justice in Aboriginal disputes in Australia.^[29] They can provide support for speakers of non-standard varieties of English, such as Aboriginal English.

A mediator aware of potential cross-cultural issues may recommend to the parties ahead of time that they consider engaging such persons for the day.

CONCLUSION

This article has presented an overview of some of the challenges that can arise for mediators when engaging with cross-cultural disputes; and how they might be dealt with in practice.

Cross-cultural issues can present themselves in a range of ways at mediation. They may play a role in the substantive problems lying behind the dispute, or arise as a barrier to effective communication and understanding between the parties. Cultural experiences of mediation can also affect parties’ expectations of the process and willingness to participate in it. Fortunately, the flexibility of most mediation processes gives space to accommodate these needs.

A prepared mediator, alert to these possibilities, can make decisions about whether it is appropriate to take special steps to deal with cultural issues in the introductory remarks, group discussion or private session stages of the process. Overt intervention may not always be appropriate. Mediators should keep in mind the individual needs and idiosyncrasies of the people present on the day trying to work out their problems.

Further training in this area is available for mediators to deepen their knowledge and skills in cross-cultural practices.

Kate Waterford is a Senior Associate at Maliganis Edwards Johnson (Barristers & Solicitors), Canberra and a NMAS-accredited mediator. Building on her studies in linguistics and cross-cultural communication, and her experience living in various Asian and European countries, Kate specialises in the resolution of cross-cultural disputes. PHONE [phone] EMAIL [e-mail] WEB

www.mej.com.au/mediation.

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^[1] Lola Akin Ojelabi, ‘Dispute Resolution and the Demonisation of Culture’, Australian Dispute Resolution Journal (ADJR), Vol. 25, 2014, p30.

^[2] See Sunny Z Hou, ‘Negotiation in China – Stereotypes and Fallacies’, ADJR, Vol. 11, 2000, p163ff.

^[3] Bee Chen Goh, ‘Cross-Cultural Perspectives on Sino-Western Negotiation’, ADJR, Vol. 5, 1994, p268, p276.

^[4] See Diana Eades, Courtroom Talk and Neocolonial Control, Mouton de Gruyer, Berlin, 2008.

^[5] See Goh, above note 3, 278.

^[6] Law Society of NSW Mediation Guidelines.

^[7] Ojelabi, above note 1, 30.

^[8] Goh, above note 3, 277.

^[9] Mawul Rom Secretariat, ‘Mediation: Cultural Healing through Community Healing

The Mawul Rom Project’ (Paper presented at Third National Indigenous Justice CEO Forum, Brisbane, November 2007).

^[10] NADRAC, ‘Indigenous Dispute Resolution and Conflict Management’ (Paper, January 2006).

^[11] Russell Thirgood, ‘Dispute Resolution Chinese Style – The Influences’, ADJR Vol. 10, 1999, p266, p274.

^[12] KL Pringle, ‘Aboriginal Mediation: One Step Towards Re-Empowerment’, ADJR Vol. 7, 1996, pp254-5.

^[13] Toni Bauman, ‘Indigenous Facilitation & Mediation Project July 2003/04 – June 2006: research findings, recommendations and implementation’ (Final Report, Native Title Research Unit, AIATSI Studies, Canberra, 2006), p9.

^[14] Lan Yuan Lim, ‘Impact of Cultural Differences on Dispute Resolution’, ADJ Vol. 7, 1996, p198, p201.

^[15] Ibid, p203.

^[16] Siew-Fang Law, ‘The construct of neutrality and impartiality in Chinese mediation’, ADJR Vol. 22, 2011, p118, p120.

^[17] NMAS Practice Standards, March 2012 version, p7 (omitted from 2015 Standards).

^[18] Peter Grose, ‘Towards a Better Tomorrow: A Perspective on Dispute Resolution in Aboriginal communities in Queensland’, ADJR, Vol. 5, 1994, p28, p32; also Young, ‘Cross-Cultural Negotiation in Australia: Power, Perspective and Comparative Lessons’, ADJR, Vol. 9, 1998, pp48-9.

^[19] Pringle, above note 12, p261.

^[20] Ibid, p264.

^[21] Law, above note 16, p120.

^[22] Thirgood, above note 11, p274.

^[23] Law, above note 16, p122.

^[24] Ibid, 122.

^[25] Julia Crockett, ‘Cross-cultural mediation and the multicultural/natural model’, ADJR, Vol. 14, 2003, pp263-5.

^[26] Ibid, quoting Wehrfitz G et al, ‘Land of the rising radiation’, New Zealand Herald 28-29 September 2002, p2.

^[27] Siew-Fang Law, ‘Culturally sensitive mediation: The importance of culture in mediation accreditation’, ADJR, Vol. 20, 2009, p162, p168.

^[28] Lola Akin Ojelabi, ‘Communication and Culture: Implications for conflict resolution practitioners’, ADJR Vol. 19, 2008, p189, p194.

^[29] Mary Anne Noone & Lol Akin Ojelabi, ‘Insights from Australian mediators about mediation and access to justice’, ADJR, Vol. 25, 2014, p212, p220.