On a regular basis, I mediate and arbitrate disputes involving people from diverse cultural backgrounds. Communication breakdowns bog down mediations and arbitrations in general, but where cultural diversity is an issue, all participants must work especially hard to address the intercultural uniqueness.
- Even if everyone speaks English and seems to share a cultural background, there may be cultural uniqueness that may lead to communication breakdowns.
- Watch for nonverbal cues such as diverted eyes, crossed arms, etc., that might indicate communication problems.
- Try to establish common ground with people from diverse backgrounds.
- Be flexible: Go beyond The Golden Rule, do unto others as you would have them do unto you, and try to put yourself in the other's shoes. How do they feel about what is happening? How might cultural uniqueness impact the interaction?
- Paraphrase and use empathetic listening to see if the message has been received as intended.
The potential for misunderstandings, confusion, and hostility is evident in many mediations and arbitrations. One way to improve the quality of the information exchange among lawyers, litigants, and the neutral is to improve communication effectiveness. As more shared meanings and mutual understandings occur, attorneys and litigants will be more likely to share honest and complete information.
There are various ways to improve the communication environment during intercultural interactions. For instance, open-ended questions may be used, which allow the respondent’s answer to be broad without limits and allow interpretation by the respondent of the subject matter. These open-ended questions early in, for instance, a mediation, may help to put the litigants at ease and encourage communication. For example, a mediator might ask an accident victim to describe how the accident happened by using the open-ended question structure.
A mediator who interacts with litigants from different cultures should consider establishing common ground and emphasizing similarities to help the litigants feel more comfortable in the exchange.
Conveying to the litigants that the message was understood through paraphrasing may be even more important in an intercultural exchange than in a mediation or arbitration with litigants who are all from the same cultural background.
Sometimes at the beginning of a mediation, litigants cannot even be in the same room, intercultural differences aside. However, reaching empathy may be one way to help solve the potential communication problems in any mediation and especially in an intercultural exchange. Empathy occurs when one has insight into the feelings of others and can share those feelings.
Training in empathy is particularly important in intercultural exchanges where there are increased chances for miscommunication. There are two steps to empathy: first, respond to what the person says explicitly and then second, respond to what is implied or hinted. If neutrals and lawyers consider differences/uniquenesses in all individuals, whether culturally diverse or not, with heightened sensitivity and awareness, all interactions might be more productive. All of the communications must have empathetic listeners and listeners must think about what is implied to empathize with the clients.
It is important to keep these issues at the forefront at all times. To help your company or law firm, consider hosting an intercultural awareness MCLE. By taking this step, you ultimately create stronger and more effective communicators.
Joan B. Kessler, J.D., Ph.D., is a mediator, arbitrator and special master at JAMS.
Phoebe King, who is focusing on employment law, is a 3L at Loyola Law School and will earn her J.D. 2022.
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