Consensual Dispute Resolution

Mediation: Acknowledge the diversity before you act upon it!

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Disputes are manifestations of “people problems rather than legal problems”. A person’s cultural background pervades the entire mediation process and must be considered while reaching mediated settlements. This becomes especially relevant in the realm of International Relations, where crises between two culturally dissimilar states are resolved through mediation.

Culture itself encompasses values, norms and standard practices commonly used by a group that is “internally approved and sanctioned” in the daily routines of people. [1]Our behavioural reactions and assumptions of life are the products of the environments we live in and this social conditioning determines the way in which a problem is approached. This, also, means that there will exist a difference between how a mediator of a particular background chooses to mediate and how parties from different cultural backgrounds respond to mainstream mediation.

Classifying Cultural Variations

There has been a lot of research in attempt to understand the behavioural patterns of countries for they are uniquely shaped by their cultures. For instance, the US tends to deal with negotiation in a highly individualistic manner. [2]Naturally, “straightforward dialogue”, which Edward Hall calls “low context communication”, is the preferred method of communication to ensure profitability of time and money(Singh Law and Technology Resources for Legal Professionals, 2007). Thus, the expenses and time consumption of litigation has made mediation a lot more popular in this country.

However, not all countries have an individualistic culture. In fact, two thirds of the countries in the world have a more collectivistically oriented culture. For instance, India, Egypt, Nepal, all have collectivistic culture which ties the individual identity to that of the group. The happiness of the group ensures the happiness of the members, implying a strong connect with family and community (Singh Law and Technology Resources for Legal Professionals, 2007). This “high- context” culture implies that much of what is being said is already understood by the other side because of their shared experiences in life. Thus, a mere inference is enough to communicate the point. Saving the relationship between the parties and keeping one’s reputation intact is valuable as it invariably reflects on the group identity. Despite this, there appears to be a dichotomy while dealing with the newer generation which practise “low context” conversational tactics. This reveals a further dilemma of cultures and subcultures that exist contemporarily.

Overcoming Cross Cultural Barriers

The mediator’s adaptability to differing circumstances is exceptionally crucial while mediating cross cultural differences. Apart from the style of mediation used, they must also change their mode of communication. Individualistic cultures tend to be more expressive, exaggerative and maintain eye contact in their conversation and the mediator must take cognizance of this fact.  Collectivist cultures tend to share very little with someone they don’t know. In this situation, a mediator must balance out both parties as expressive parties might correlate the mediator’s effectiveness with their ability to hear them out while maintaining eye contact whereas those who are not too expressive while find this absurd in a mediator.

Similarly, the approach that various cultures take to resolve issues is very specific. Single-focus cultures, mainly individualistic societies, deal with one issue at a time, in a liner manner and in a business-like fashion. Multi- focus cultures, mostly collectivistic societies, juggle several issues at once to arrive at solutions side by side with other conversation. The mediator must respond to the what is comfortable and preferred by both parties, often switching up tactics while either side is talking. Alternatively, a mediator can assess the background a person comes from which determines whether they prefer solutions based on the exact letter of the law or whether they may choose other general, flexible alternatives to maintain the relationship between parties.).

A prime example of cross cultural mediation was the resolution of the dispute over the Sinai peninsula territory, at the end of the Arab Israel War. The United States played mediator in this dispute. Using an ‘incremental’ peace strategy, the US managed to achieve what the United Nations was not able to do. The strategy employed involved gaining the trust of both these countries by working in tandem with them, rather than acting as a third party neutral. The collectivistic orientation of the two countries involved in the dispute meant that the US had to get to know them in order to facilitate the peace process.[3]

A mediator, in the day of cultural globalization, needs to be culturally sensitive while working with parties. They can build on the common values that the parties share to point out common ground. They may take the help of co-mediators (someone who is more familiar with the culture) to make the process more efficient. It is also important to keep in mind that individuals, though largely influenced by their respective cultures, are the ones involved in International Mediation and if the mediator is not spontaneous enough to adapt to the circumstances at hand, he may end up stereotyping a people and the mediation would fall through the ground.

(This post has been contributed by Aaditi Pradeep, a second year student at Jindal Global Law School)

References-

[1] Rendon, J. (2018). When You Can’t Get Through To Them: Cultural Diversity In Mediation. [online] Mediate.com. Available at: https://www.mediate.com/articles/rendon.cfm [Accessed 1 Oct. 2018].

[2] Sgubini, A. (2006). Mediation and Culture: How different cultural backgrounds can affect the way people negotiate and resolve disputes. [online] Mediate.com. Available at: https://www.mediate.com/articles/sgubiniA4.cfm [Accessed 1 Oct. 2018].

[3] Satloff, Robert. 2018. “The Myth Of “Failed” Peace – The American Interest”. The American Interest. https://www.the-american-interest.com/2018/09/12/the-myth-of-failed-peace/.

 

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