Understanding cultural differences to mediate more effectively
Source:
Plaintiff Magazine
Date:
August 2016
BYRANDALLCHOY
I am an avid, though not a particu-
larly distinguished, tennis player, and had
the good fortune of playing on a team to
represent Northern California in the
USTA National Championships in Tuc-
son, Ariz. Sixteen teams from all over the
country each represented their sections,
distilled down from the 6,000 teams that
started the season, all with high hopes of
making it to “The Nationals.” What struck
me most about the event was that every
other team, except the team from San
Francisco, was basically homogenous in its
makeup of team members, at least in
terms of ethnicity.
As one might surmise, most of the
teams were comprised of Caucasian play-
ers from all over the country, but some
teams were all Filipino, Taiwanese or all
Hispanic. The team from San Francisco
however, was a “rainbow coalition” of
African-American, Vietnamese, Chinese,
Persian, Lebanese, Indian (Southeast
Asian), and Caucasian. To throw in even
more variety, we also had straight and
openly gay players. Fortunately there was-
n’t a hint of discrimination at the event,
but we were quite the talk of the event be-
cause of our diversity.
While we are very lucky to be on the
West Coast and have this diversity, it also
introduces many challenges on occasion,
when attempting to successfully mediate
or arbitrate cases. The signals sent and
received, both verbal and non-verbal, can
be subtle, yet significant.
This article is not, by any means, in-
tended to be a comprehensive discussion
on how to approach the complex topic of
cultural sensitivity. It is however, meant to
raise awareness of the role of culture in
successfully litigating, mediating and ar-
bitrating cases involving the vast cultural
diversity found on the West Coast, as part
of the greater Pacific Rim.
Taking sides
Fast forward to a meeting that I par-
ticipated in a few years ago, where both
sides had “lawyered up,” and in atten-
dance were young associates, forensic ac-
countants, personal representatives, and
the parties themselves. Both clients were
Asian, and the other side “took the
floor,” wanting to present their side first.
My client glanced at me, and I knew she
was annoyed by the presumptuousness,
but it was also unspoken that it was to
our advantage to let them go first. We
would learn more by listening than by
talking.
Understanding cultural differences
to mediate more effectively
Cultural diversity can create barriers
to settlement, but they can be overcome
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AUGUST 2016What the other lawyer could have
done was offer to let us go first, where-
upon we would have politely declined,
and both sides would then have achieved
their preliminary objectives. In any event,
the other side then proceeded to put on a
“dog and pony show,” during the entirety
of which my forensic accountant and I lis-
tened politely, nodding occasionally to
show that we understood their position.
At the end of the 30-minute presentation,
the attorney closed his binder, and asked
if we had any questions. We did not so the
three of us shook our heads, “no.” The
other attorney then, looking rather smug,
thrust a small sheaf of documents across
the table at us, and said, “Since that’s the
case, I’ve prepared the documents to set-
tle this case, so sign and we can be done
with this mess.”
Let’s take a moment to analyze what
happened here. In Western culture, per-
haps absolutely nothing occurred out of
the normal realm of negotiation strategy.
In this particular case however, a myriad
of faux pas were committed. The other
side started out by aggressively taking the
floor, something that is probably taught
as good strategy in some cases. “Take the
floor,” “own the courtroom,” “take control
of the agenda.” All good western ap-
proaches to meetings held all over the
country, if not the world. As pointed out
earlier though, these approaches are not
necessarily the approach that will lead to
the greatest receptiveness in certain situa-
tions and cultures.
What else happened? Complete mis-
reading of how their presentation was re-
ceived by one side of the table. Politely
nodding our heads meant that we under-
stood what was being presented, not that
we were accepting the position posited by the
presentation. When we politely declined to
sign the proffered settlement agreement,
agreeing only to take the presentation
under calm deliberation and provide a
response, the other side was livid. They
had assumed as the presentation was
going along, that the polite nodding of
heads was tacit agreement with their posi-
tion, and therefore they had won. Wrong.
Lastly, one could assume a rather
minor detail, yet was one which could
have major ramifications, was the flippant
act of tossing the settlement documents
across the table to my clients to sign. In
most Pacific Rim countries, that would be
construed as disrespectful. Even if the
documents were ultimately to be signed
because they represented a fair resolution
of the issues, that act could disrupt the
entire process, and at best, delay it until
the insult was attenuated by time. A me-
diator’s nightmare for sure, to have settle-
ment at hand, only to have it delayed by
an unintended failure of etiquette.
Using aggression
Aggression is part of our American
culture, especially for lawyers. It is not
surprising that Asian cultures also express
and encourage aggressive tactics. How-
ever, aggression is expressed in many dif-
ferent ways, and many cultures. Some
Pacific Rim cultures tend to be less out-
wardly expressive of aggression. Tradi-
tional Asian martial arts is particularly
illustrative of this issue. Though some
forms are outwardly aggressive, like
Kenpo and Tai Kwan Do, others are
counter-punching or even outwardly
passive, such as Wing Chun or Tai Chi.
Litigation can be very similar to martial
arts. Who throws the first punch? Is your
strength in attacking, defending or
counter-punching? Psychologically, how
do you best get information about your
opponents? As a mediator, this same in-
formation is important to get both sides
of the table to engage in meaningful dia-
logue. Perhaps even more important is to
know each side’s propensities to prevent
unnecessary friction which can obstruct
resolution, or delay it.
The different cultural approaches
to aggression arise frequently. I was re-
cently asked about receptivity of Asian
parties to mediation, and told that while
mediation was almost non-existent, arbi-
tration was steadily gaining acceptance
as ADR. I was then asked why I thought
that was. Upon reflection, I think my an-
swer was correct. Nearly 40 years of
practicing law and mediation has shown
that most cultures still adhere to the ad-
versarial mode of dispute resolution.
Someone is right, someone is wrong.
Mediation is more often, a middle
ground. Mediation is allowing the par-
ties to honestly and openly discuss the
issues. I think mediations are not suc-
cessful because the parties are led kick-
ing and screaming to the bargaining
table. It is often hard to have forthright
conversations without a lot of confidence
and trust-building first, something not
easily done in one session.
Chinatown no longer
homogeneous
By a rather late introduction, I am
Chinese by ethnicity, a fourth generation
San Franciscan, born and raised. How
then, am I any more qualified to speak
about diversity than any other mediator?
Take a stroll down San Francisco’s China-
town, and to the uninitiated, it looks very
similar to what one might expect – up-
turned gabled roofs, painted in garishly
flamboyant colors, reds and greens pre-
dominating. There are still souvenir
shops, roast ducks and roast pork strips
hanging from racks, prominently dis-
played in shop windows; tea and herb
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AUGUST 2016
Tips for cross-cultural mediations
In mediating cases, with cross-cultural
effects, and indeed all mediations, it is im-
portant to:
• Do your homework. Know your party’s cul-
tural, economic and personal background.
• Determine the level of hostility, anger and
resentment, which are not part of the law,
but clearly part of the process. Do this by
engaging the parties at the outset.
• Determine the real goal (Chinese: mùdi)
of the parties. If it is monetary compensa-
tion, that is easy; but it often takes a little
digging to get a bottom line.
• As all good mediators do, listen carefully
and watch for clues that may not be imme-
diately obvious, and be sensitive to different
cultural values.shops are still numerous. Y et the China-
town the tourists see today is vastly differ-
ent from the Chinatown of 50 to 60 years
ago – the point being, the people of Chi-
natown, the population is vastly different.
For one thing, it is actually far more di-
verse than one would expect, and lump-
ing the population into the group
“Chinese” would be stereotyping at its
worst.
Rolling the clock backwards about 65
years however, for the first 100 years the
Chinese population was far more homog-
enous. One could, with some validity,
make certain assumptions about the Chi-
nese people they were dealing with. I
make two brief points here: One, I am
more “Chinese” than one would expect of
a fourth generation ethnic Chinese be-
cause my parents grew up in a culturally
Chinese environment, since Chinatown in
America was a static copy of China as the
first immigrants knew it when they left
China.
Get to know the other side
The first step in evaluating your op-
ponent, client or party is to do a little
homework and determine the most likely
scenario. What country, what region, what
era and what family background did they
come from? As a mediator, I often hear
people complain that the first hour or so
in mediation doesn’t seem to target the
issues. On the contrary, as I get to know
the parties by getting to know who they
are, where they come from, that is exactly
the information that helps me success-
fully mediate a case. And this is true even
if the culture that I am learning about is
outside of California, or outside of my
admittedly urban sensibilities.
I do have a little advantage being
ethnically Chinese, particularly because I
speak Cantonese relatively fluently and
was very interested in Asian-American
History. I know that immigration until
1965 was predominately from the Sze
Yup Provinces in China, an area that was
predominately poor, uneducated and sub-
ject to certain stereotypes. As I hope you
noticed, I have just fallen into the trap of
stereotyping. I too, have to constantly re-
mind myself not to fall into assumptions,
pejorative or otherwise. Dealing with Chi-
nese parties who came to America later
than 1965, (and that group is getting
more and more prominent), can be
difficult based on where they are from.
Taiwanese think differently than Mainlan-
ders, who think differently than their
countrymen from the South, let alone Ti-
betans or Mongolians. Not only is Thai
culture vastly different from Lao, Cambo-
dian, Japanese, Singaporean, or South
East Asian culture, but even within each
country sometimes dramatic regional dif-
ferences exist.
Do some research, show
respect
Of course, no mediator can expect to
have expertise in all cultures, but the in-
ternet is amazingly helpful in doing a lit-
tle homework, laying the foundation for
at least letting the parties know that the
neutral cares enough to want to learn
about a certain culture. Working with
Chinese parties, I still have a lot to learn.
For example, mediating a case involving
the equivalent of the Chinese Chamber of
Commerce, and its various constituent
parts, I did some research that enabled
me to show the parties that I was familiar
with their various boards, which Chinese
villages they represented, and the area’s
election process. That credibility enabled
me to get started quickly with the issues
they were trying to resolve. As mediators
and advocates, tap into your resources in
the community who can give you the “lay
of the land,” politically and culturally.
In the opposite kind of situation,
where I had no knowledge of a particular
culture, instead I spent the first hour lis-
tening to a party from Iran, and learned
about the issues of Persian ethnicity, and
the difficulties of being assimilated in the
U.S. coming from a Middle Eastern coun-
try with a certain population that doesn’t
fit into the mold of an Arab culture. I
know a former superior court judge who
is not Asian, but is a highly successful me-
diator. For his cases involving Chinese
parties however, he makes a point of
bringing out a little notebook with some
Chinese phrases that he has memorized.
His pronunciation is horrible. However, it
is clear that he is respectful, always is in-
terested in learning, loves people, loves
his job, and is truly interested in helping
to resolve the problem. Needless to say,
he is not only popular, but extremely suc-
cessful in mediating cases.
Randall Choy, Esq. is
a JAMS neutral based in
San Francisco. He has nearly
40 years of experience han-
dling and mediating a wide
variety of cases, including com-
plex personal injury, construc-
tion and business litigation.
He can be reached at
rchoy@jamsadr .com.
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AUGUST 2016
Choy