During your pre-mediation conversations the mediator can start thinking about the kind of cultural differences that might affect the mediation and the best way to address them. They may consider how time will be used in negotiations (the Swiss, for example, are known for their efficiency). Whether the parties are amenable to a joint open session (a German client would be keen while an American client would baulk at the idea). How high one party is likely to start with their opening offer (in the Middle East it is often high). How quickly people move from problem solving into bargaining (Americans can be super-fast).
Over the years, I have found How to Negotiate Anything with Anyone Anywhere Around the World by Frank L Acuff to be an excellent resource for such country-specific information.
Mind the language
Never assume that a mediation will be conducted entirely in English for disputes where the contract is in English. I have had situations where in the joint meeting one party has started speaking amongst themselves in a language that the other party seemingly does not understand – and had to ask them to refrain from doing so.
At one mediation, a family business matter where the parents and an adult daughter were in dispute, it became apparent one party from China couldn’t speak or understand English. She said her son who was present as her ‘supporter’ would translate for her. I then had to carefully monitor with the father that the son was accurately translating and nothing was ‘lost in translation’, especially since the outcome could impact on the son.
Cultural differences and communication
Communication is a key part of mediation and is another area where cultural differences should be considered. One party may come from a ‘high context’ culture – typically Latin America – where the meaning is deeply embedded in what someone says. Another party may be from a ‘low context’ culture, like the Netherlands, where the message is more explicit. In such situations it is down to the skill of the mediator to ensure communication between the parties flows smoothly.
A mediator may be asked by someone from a low context culture to be direct with the other side – to essentially tell them how it is. However, such an approach may be too direct for the high context party. Here, the mediator may need to explain the difference to the low context party and agree a way to temper how their message is delivered in the other room.
In person versus online
Some cultures, such as those in Southern Europe, prize body language more than those in Northern Europe. In my experience because of this Italians, Greeks and Spaniards may initially prefer to mediate in person as it is deemed harder to pick up on body language online.
There is an easy way to address this issue. During an online mediation each person could use a separate device and camera, even if they’re physically together in one room in a blended mediation. They could also use a 360-degree camera that gives several views of the room simultaneously. Being ‘tech ready’ means the party can see the reactions of listeners as well as speakers.
Authority to settle
One of the responsibilities of a mediator is to check that the individuals attending on behalf of a company have authority to settle. This can be more challenging with international mediations where in some countries decisions are typically made by a team rather than an individual, as in the case of the Far East for example. Making sure the person attending the mediation can be in touch with the team back in the office can be vital. And, of course, there may be the added complication of time differences. I recall a mediation in Norway with a Korean party, where decisions are typically made by the group, where there were many late-night phone calls!
The key to a successful mediation is to be aware of, and sensitive to, potential differences in expectations, communication and behaviour. A mediator experienced in international disputes is attuned to all these issues and can help parties who come from different countries and cultural backgrounds bridge these differences and navigate their way towards a settlement.
Given the complexity, time and cost of litigating and arbitrating international disputes, plus increased difficulties in enforcing English judgements in the EU post Brexit, mediation could be just what your global clients are looking for.
* For more information on international mediation, see Alternative Dispute Resolution – An International Guide [link to https://mediate.co.uk/article/alternative-dispute-resolution-an-international-guide/]