Whether you are a mediator in a mediation with parties from different countries or are an advocate in such a mediation, it is important to understand that mediation with even one non-US party requires special considerations and preparation.
If you are a mediator or are counsel where a mediation will involve parties from different countries, your usual mediation toolbox will need some special components.
Recognizing and acknowledging cultural differences is the first step. This starts with knowing that there will be cultural differences and making sure that the mediator is aware of the background of the international participants.
There are many aspects to this. A potentially major mistake is scheduling the mediation during a religious holiday for one of the parties can set everyone off on the wrong foot. For example, Ramadan lasts a month and people observing Ramadan fast during the day – maybe not an ideal time to make serious decisions. If the mediation is in person, be aware of hierarchical differences as well as religious differences in how you and your client greet other counsel and their clients. For example, if your client is male and another party is a female from a culture where men and women do not touch people of the opposite sex that they do not know, it would be a faux pas to try to shake hands with the woman. In some countries being late to meetings is common – although the mediator should set expectations for punctuality, should a party from a culture with different time considerations be late, do not let that ruin the mediation. Cultural differences include how people speak. Some cultures are more assertive while other cultures are deferential. Recognizing these potential communication differences as a mediator and as an attorney representing parties will make a difference.
It is also important to understand how the influence of culture impacts respect that is expected. What are the considerations to take into account? Understand the value system of all involved. Also be aware of stereotypes and prejudices – of yourself, your client, and others. In some cultures, women professionals are rare and not well respected. Also, some cultures do not have people of color in positions of power. And even people who speak the same language might have variations based on culture, class, and country. All these things need to be acknowledged in advance.
For those counsel who have represented foreign parties, you know how vital it is that customs are followed. Even in a domestic setting it is important to show respect, for example, to someone who might be older or to someone who has a key role in a company. In an international setting small and large moments matter. This encompasses everything from where people are seated at a mediation, how people greet one another, whether in person or by zoom, how business cards are presented, and how people are addressed.
In her series of books Kiss, Bow or Shake Hands, author Terri Morrison provides advice on cultural differences to businesses who are conducting global operations. The State Department issues guidance on dealing with different cultures for its employees who are stationed around the world. There are many resources to aid counsel in how to recognize what constitutes respect and to be able to advise his or her client appropriately. Recognizing cultural differences and the importance of respect is key to a successful mediation.
Be aware if other parties are from different legal systems where perhaps civil law or Sharia law applies. For torts cases, one of the biggest differences between the U.S. and many countries that use civil law is the calculation of damages. Damages are often much, much less outside the U.S. In France for instance, the amount of damages may be determined by a table, and both personal injury and death claims are valued within a certain range. Punitive damages also do not exist in many other jurisdictions. Even if choice of law is not a factor, understanding the possibility of punitive damages in U.S. litigation may be a difficult concept for a foreign party to comprehend. In other common law jurisdictions, there will be wide differences in the amount of damages that can be awarded, and in many jurisdictions, the party who loses a case in litigation has to pay the legal fees of the opposing counsel. It is highly recommended that a lawyer from the involved jurisdictions be consulted to gain a basic understanding of the differences before the mediation begins.
What should you do if you represent a client from outside the United States who has never participated in, or even heard of, mediation as an alternative dispute mechanism? The client may not be familiar with the U.S. legal system and may not even speak English. If there is pending litigation in the U.S., hopefully you have already explained the U.S. legal system to your client, especially discovery – and the cost of conducting discovery – as discovery does not exist in most non-U.S. jurisdictions.
The client may be familiar with arbitration and believe that mediation is similar to an arbitration. Besides informing your client about what mediation is and how mediations are generally conducted, it is important to also explain the benefits of mediation to the client. Although in tort matters a company may have insurers who understand mediation, the insured may not know anything about mediation.
Your client should understand that mediation does not result in a decision of the matter on the merits and the mediator is not the “judge.” This can be confusing if the mediation or settlement conference is court-ordered and conducted by a magistrate or other court appointed mediator. If the mediation is with a private mediator, determining whether the mediator will use an evaluative or facilitative method is good to know in advance. Although there is no decision rendered by the mediator, an evaluative mediator is obviously providing his or her thoughts on the strengths and weaknesses of each party’s position. This should be explained. Other important aspects of mediation to stress with any client is the confidentiality of the mediation, particularly as to what will be told to the judge on the case should the mediation not be successful. The client should not be expecting that you will be presenting its full case during the mediation. Decisions about remote or in-person mediation needs to be discussed fully, especially as to the costs involved and the need for interpreters. Most importantly, each party should be agreeing to the mediation with a true desire to resolve the dispute.
Convincing a foreign client to mediate may be difficult. Many foreign jurisdictions do not have mediation. If they do, it is more typically in the areas of consumer disputes, family disputes, or landlord/tenant disputes. Clients may be concerned with the cost of mediation, especially if it will require travel to the mediation in person from a foreign jurisdiction. Point out that mediation is a lot less costly than arbitration or litigation. If a settlement is reached at the mediation, or even afterwards with the help of the mediator, the case is over. There is no waiting for an arbitrator or judge or jury to issue a decision. There also is true finality as there is no basis for appeal as there is no decision – other than by the parties.
It is important to explain to non-U.S. clients the various forms that a mediation might take. This is not very different than explaining the process to a U.S. client, but you may encounter more resistance from a non-U.S. client who may be skeptical of the mediation due to unfamiliarity with the concept of mediation in general. The decision as to whether a mediation is remote or in person could be more difficult with a foreign client. Culturally, even suggesting a remote mediation could be offensive, while the cost factor for a mediation in person could be significant. Be careful in advance about the process starting at the very beginning such as the parties being together in the same room. There will have to be someone with full authority to settle the matter appearing for all parties. You will need to explain about “shuttle diplomacy” as the mediator goes back and forth between the parties. Also, clients should not worry if the mediator takes a short or long time with a party. Definitely stress that whatever is communicated to the mediator is to be considered confidential unless the client gives permission to the mediator to use certain information. Remember that for individual parties this is likely to be your client’s first experience with mediation.
Be sure to have an interpreter at the mediation if your client is not fluent in English. You do not want any misunderstandings. Cultural differences should be taken into account as well, not only as to your client, but as to the other parties as well. It is recommended that interpreters be present even when the party speaks English fairly well. Many nuances are lost when a party does not speak English day in and day out. If it is another party who is from a foreign jurisdiction, you may also want to have an interpreter present who speaks the language of the other jurisdiction. This can be very useful to make sure that another interpreter is interpreting correctly, and also your interpreter may pick up on nonprivate discussions that the other party is having in their native language.
While many of the elements for a successful mediation are in play where there are foreign parties, it does take specific understanding and planning by the mediator and all counsel if the mediation will have a chance at success.
