Cross Cultural Mediation

Hon. Eric Watness (Ret.) joined JAMS in Seattle after serving on the King County Superior Court for more than 16 years. He has extensive experience settling family law and probate matters and can be reached at ewatness@jamsadr.com.

Since business is more global and companies and transactions often cross borders and cultures, it’s very likely that eventually you’ll conduct business with someone whose first language is not in English. Or one or more of the participants may have a communication deficit or might not share cultural norms of the dominant culture. Courts must use interpreters to facilitate communication between parties and witnesses, but in mediation we do not have the same legal mandate.

Even with the use of interpreters, the parties and mediator must achieve true understanding among those who do not use the same negotiation or expectations employed by the majority culture.

So how do you successfully reach settlement in cross cultural mediation? Here are some ideas to help come to a final settlement of a dispute or concern.

First, prior to attending a mediation session, anticipate any potential language or cultural concerns.

• Make sure the neutral is aware of any such concerns
• Insist on the use of interpreters if parties need help with communication
• Be familiar with interpreter ethics rules and protocols
• Consult with experts who understand potential language and cultural barriers
• Assess whether professionals are qualified to participate and decline services if they aren’t

Second, during mediation, continually verify that your perception of any communication is accurate.

• Restate frequently what you are hearing from one another and seek clarification when necessary
• Allow for the additional time it takes to restate and reframe issues and facts
• Avoid jargon, slang and technical verbiage such as legal or professional terminology
• Double check your perception with others in attendance. Consider this controversial idea: While a trial judge could not ethically allow an interpreter to explain an answer or provide an evaluation of the testimony, your experience will be greatly enhanced by such information so long as the voluntary agreement is understood by each participant.
• Use means other than spoken language to depict negotiations including pictures, graphs, visual or other creative aids.

Third, protect the mediation process. Settlement is the goal, but not at all costs.

• Make sure the terms of any agreement are articulated in a vernacular the parties understand
• When a participant clearly does not understand a proposal, the parties should determine whether it is proper to continue until understanding is assured
• If there is an imbalance of power, work with the mediator and suspend the negotiations or implement other means to mitigate that constraint
• And when the party is clearly unable to proceed for lack of understanding, the mediator needs to halt the negotiations

The task of reaching settlement is more difficult when barriers exist to effective communication and comprehension. Preparing your client and the neutral for that task will be rewarded by a complete and final resolution.