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Cultural background may affect mediation

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Elodie Meuser, an Indianapolis attorney and mediator with The Mediation Option, recalls times when the firm has handled cases involving people from different countries. One case, in particular, resulted in a slightly puzzling outcome.

“I wasn’t personally involved in the mediation – but we had a gentleman who was from Tunisia, and when things seemed to not be going his way, he ended the mediation. Of course that’s what everybody wants when they come to mediation – they want to get their way. But it was a bit unusual that it ended so quickly,” she said.

Mediators say that they must be able to understand cultural differences without making broad generalizations or assumptions.

“As neutrals, we have to make sure that our experiences don’t enter into it,” Meuser said.

Real and perceived differences

We’ve all heard the saying, “As American as apple pie,” but some Americans don’t like apples. Or pie. So to assume that all members of a particular culture share the same values or personality traits would be a fallacy, as attorney and mediator Sam Ardery explained.

Ardery, of the Bloomington firm Bunger & Robertson, said that he does not assume that people from different cultures will necessarily react differently to mediation than anyone else would.

“It doesn’t give them credit for having done their own research about it,” he said.

When Ardery knows that clients come from different cultural backgrounds, he tries to learn about the people before he meets them.

“I do a little more preparation ahead of time and call those people, or call their lawyers and talk to them,” he said.

Some differences are not so much about customs in other cultures, but are more about the value Americans place on certain transactions – like contracts.

“In the United States, we sign a contract, we assume it’s binding. But for some people when they sign a contract, that’s the beginning of the negotiation,” Ardery said.

Doing business at home and abroad
 

lykins-dallin-mug.jpg Lykins

Dallin Lykins, an immigration attorney at Lewis & Kappes in Indianapolis who has mediated family law cases, has experienced how some cultures have a different view of business relationships.

Lykins was a missionary for his church in Costa Rica for two years, and in that time, he observed an approach to business that is considerably different than the contract-driven American business culture.

“It seemed to me that a lot of their issues they took much more personally. Especially in business settings, everyone was viewed as a friend,” he said.

“Almost every aspect of our lives is based on, ‘We have to form a contract first.’ In Costa Rica, I didn’t notice this as much. It was often, ‘This guy’s my friend, and this should be fine,’ and that was very often successful when a dispute came up,” Lykins said.

Much of what Lykins understands about cultural differences he learned through the process of trial-and-error.

He said his tendency to think, “There’s a problem, you resolve it,” wasn’t necessarily what people expected out of him, especially in family disagreements. “They wanted someone to help them handle the emotional aspects of the dispute.”

In cross-cultural mediations, he said, mediators should take the time to learn about how the specific problem parties wish to address – divorce, for example – may carry different weight in another country.

“You have to do your homework and know about that culture and what to expect, but second, listen to them and know what their background is and what they expect,” Lykins said.

The best way to understand a person’s background is to ask, rather than assume, as reflected in the Pew Hispanic Center’s report called, “When Labels Don’t Fit: Hispanics and Their Views of Identity.” The report, released April 4, stated only 29 percent of Latino or Hispanic people agree that they share a common culture, with 69 percent saying that Latinos in the United States have many different cultures.

Language barriers

Meuser’s firm handled a mediation between a Muslim man and his ex-wife, in which one disagreement concerned a word he asked his daughter to use when referring to his new wife, who was also Muslim.

“What this gentleman wanted was to refer to his new wife by a name that wasn’t familiar to everyone, and the biological mother was concerned that the man’s daughter was calling her ‘Mommy,’” Meuser said. “We did research on the Internet while they were here, and we tried to find out what the meaning was of that word, and we found out that word wasn’t ‘mother,’ but that it was a term for a revered adult female.”

The father hadn’t been able to explain the word – at least not to his ex-wife’s satisfaction. But when mediators explained what they found in their online research, she did not object to the term.

Meuser recalled another instance where language presented some challenges for mediators.

“We also had a Japanese woman here who had bank accounts in Japan, and her husband was relying on her to translate, to say what they meant,” she said. The mediators had no way of knowing whether the woman’s translation of the documents was accurate, so the final mediation agreement was drafted to say that if the husband later found out that she had deceived him about the bank accounts, the case would be reopened.

Cultural impact on closure

The American Bar Association’s Section of Dispute Resolution scheduled a continuing legal education program for April 20, to be held at its annual convention. The program description for the CLE, “When Is A Deal A Deal?  The Impact of Culture on Closure and the Durability of Settlement Agreements,” states that in different cultures, people view fairness, truth and durability quite differently. That’s something Ardery heard about recently at a seminar.

“I was just at an ethics seminar in Cincinnati and they had two people there who were general counsel for large multinational organizations and they talked about situations they ran into where they went into certain cultures where gift-giving was part of the culture,” he said. To Americans, gift-giving in business can be seen as bribing.

“So (while) in the United States no one would legally expect to go and give someone in the government a gift – I’m going to buy you a vacation home, and you pass this piece of legislation – there are some places in the world where that is expected,” he said.

Ardery said that despite any differences between cultures, mediators generally must prove their trustworthiness in the same manner, using the “Trust Equation” set forth in the book “The Trusted Advisor,” by David Maister, Charles Green and Robert Galford.

That equation means mediators must demonstrate credibility, reliability and intimacy – or, how secure the client feels – all over a “denominator” of self-interest, meaning the mediator is motivated by the client’s needs.

“In thinking about that, I think it really applies, whether somebody grew up in the Midwest, or somebody grew up halfway around the world,” Ardery said.•
 

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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