Mediation is very much affected by cultural issues in three ways: 

First, the mediation process itself does vary by culture. The scholar Sally Merry has studied the process of mediation worldwide. One of her conclusions is that in individualistic countries, such as the United States, to be successful in a mediation the disputant needs to be able to tell their story in a chronological order, needs to be able to set aside emotion at some point and needs to engage in oral problem-solving. There are those who argue that individuals in the U.S. who are not comfortable with those skills may not fare well. Fortunately, a skilled mediator can adapt the process to the skills, strengths, special needs and concerns of the participants.

Second, the cultural identification of the mediator may have implications of its own. In the United States mediators must be neutral and impartial. Yet, the mediator’s cultural identification may impact the sessions. For example, if the mediator values assertiveness, they may unconsciously support participants standing firm and overlook opportunities for agreements. On the other hand, if the mediator values harmony and cooperation, the mediator may unconsciously support parties reaching a premature or inadequate agreement, which might lack durability in the interest of helping the parties agree. 

Third, the cultural identification of the participants has cultural implications too, as does the communication style associated with such identification. One example is how cultures vary in what is called high context and low context. High context cultures such as China, Japan, Korea, and most Latin American cultures, tend to understand conflict in a holistic context and focus on the affective, relational, personal, subjective aspects and avoid open conflicts. Low context cultures, such as the United States, Germany, and Nordic countries are comfortable separating conflict issues from the person and prefer direct, confrontational and competitive styles. For example, high context cultures are much more likely to use third parties in conflicts to avoid face-to-face confrontation. Low context cultures prefer to deal with their adversaries directly. 

So, how best to deal with cultural issues during mediations? I use two general guidelines: 

1.) Recognize your own cultural values and biases.

2.) When listening to other parties tell their story, don’t ask “How would I see this if I were in their position?” Instead, your understanding will only come from learning how the other person sees the situation from their perspective.

Dispute resolution and mediation work best when the parties come into the process with the shared objective of working toward a mutually acceptable agreement. I’m often asked what mediators do when one party has the objective of getting everything they want at the expense of the other party.

As David Ross, a JAMS mediator and arbitrator, wrote on a recent JAMS “ADR Insights,” that mediators are “preternaturally patient people who remain calm and focused” when dealing with “strong personalities or irrational intransigence.” Nonetheless it is just the hyper-aggressive negotiator who can undermine the process by making it less productive and certainly less collaborative. The hyper-aggressive negotiator may withhold information or distort information, refuse to make any concessions, make demands for irrelevant issues that are later offered as concessions in exchange for concessions on relevant issues, engage in personal attacks, attempt to use deadlines and threats to gain concessions, and any number of strategies in an attempt to obtain power and acceptance of the outcome they desire.

I have often worked with individuals who make unreasonably high initial demands (or unreasonably low initial offers) and then refusing to negotiate. Some of these individuals attempt to delay and delay until the other party weakens and makes concessions. Hyper-aggressive negotiating behaviors are simply contrary to efforts to work together to find creative solutions that work for all parties because they destroy any trust between the parties to work cooperatively.

So, how do dispute resolution specialists deal with hyper-aggressive negotiators? Mediators attempt to explain the benefits of cooperative problem solving. Mediators can also raise questions as to what the outcomes might be if the parties don’t settle, as typically, the outcomes of not settling can be costly to all involved. Mediators also have ethical responsibilities to insure that the negotiation process is fair and that the parties are under no undue pressure to accept an outcome out of fear of reprisals. Any mediator has the right to withdraw from any mediation when in doubt of the fairness of the process.

Basically, when forced to deal with an uncooperative negotiator, the question to be considered is why should we negotiate at this time, with these parties, under these circumstances. Don’t be forced to settle now when circumstances and people may change. Time pressures may work on an uncooperative negotiator and encourage a change in behavior.