Mediating the Asian way – is there a difference?17 FEBRUARY 2016AMINZ AUCKLAND BREAKFAST MEETING CAROLE SMITH

I’m not Asian, but …

Conducted 30 mediations in Singapore

Observed 14 commercial mediations at the Singapore Mediation Centre ranging in value from SGD $250k to SGD $35m

Tenancy, personal injury, joint venture, supply of goods and services, construction, banking, shipping

What do I mean by “Asian”?

“The diversity and richness of languages and traditions in Asia makes the suggestion of a uniform Asian cultural identity crude and fictitious” – Joel Lee and Teh Hwee , “An Asian Perspective on Mediation”

However, “there are core values and beliefs that are important in a significant number of communities in Asia” – Joel Lee and Teh Hwee Hwee

- Confucianism- Collectivist inclination- Prevalence of face concerns

Although beware dangerous assumptions

Two themes

How does ‘Asian’ culture differ from the ‘West’?

How might these cultural differences affect the way mediation is conducted in New Zealand?

What do I mean by culture?

“Patterned way of thinking based upon values followed by a group over a period of time” – Sukhsimranjit Singh, 2014 AMINZ conference

Culture not necessarily synonymous with nations

Even where cultural difference connected with nationality, not all people of that nationality will behave similarly

Hofstede’s Dimensions of Culture

1980s – study of characteristics of IBM employees from over 53 countries

Two dimensions important for our purposes

Power Distance – Low Power Distance comfortable with flat structures and shared authority, High Power Distance comfortable with hierarchy and clear authority figures

Individualism/Collectivism – Individualism focuses on individual rights,

Collectivism emphasises close ties between individuals

Culture in mediation

“Ignoring culture in mediation can lead to a lack of understanding and misunderstanding and cause a breakdown in negotiations” – Boulle, Goldblatt and Green, “Mediation Principles, Process, Practice”

“Is culture important? Of course it is, but the challenge is to not fall into the trap of thinking that the generalisations we draw represent reality” – Joel Lee, “Mediation in Singapore: A Practical Guide”

The ‘interests-based’ model of mediation

Also known as ‘facilitative’

“Interests motivate people; they are the silent movers behind the hubbub of positions” – Fisher & Ury, “Getting to Yes”

Typically minimalist mediator intervention – mediators in a low power position

“An Asian Perspective on Mediation” prompted by concern that interests-based model may not be suitable in an Asian context

Cultural assumptions in interests-based model

Primacy of individual and individual’s expectation of autonomy

Priority of interests of individual Direct and open communication a good thing (note high-context

and low-context communication)

Maintaining a good relationship for optimal outcome

“Core Asian values”

Three core themes which correspond with the cultural assumptions in the “interests-based” model

Confucianism

Collectivist inclination

Prevalence of face concerns

Confucianism

A school of philosophy founded by Confucius (551-479 BC) Widespread across Asia Four tenets

- social harmony - hierarchical relationships- relationships are the source of humanity - compromise, yielding and non-litigiousness are virtues

Collectivist inclination

Norms, obligations and duties to groups are collectivists’ primary concerns

Social groupings may include family, workplace, religious groups,

villages

More willing to sacrifice personal interests for the attainment of collective interests

Prevalence of face concerns

“Face-saving” – preservation of respect, avoiding shame within one’s reference group, and maintaining harmony

“Face-giving” – acting to preserve the face of others

Face in ‘Asian’ context inseparable from the context of relationships

Incompatible cultural characteristics

“Quite obvious that they [the core values] are incompatible with, and act as counterpoints to, the cultural assumptions inherent in the interests-based model of mediation” – Lee and Hwee Hwee, “An Asian Perspective on Mediation”

Primacy of social hierarchy and individual’s expectations to fulfil roles in hierarchical relationships (vs primacy of individual and individual’s expectations of autonomy)

Priority in observing proper conduct (vs priority of interests of individual)

Incompatible cultural characteristics cont.

Communication and conduct geared towards preserving harmony, relationships and face (vs direct and open communication constructive for conflict management)

Context-dependent relationship maintenance a way of life (vs maintaining a good relationship for optimal outcome)

Note distinction between “in-group” and “out-group”

Light entertainment

Light entertainment cont.

Light entertainment cont.

Light entertainment cont.

Light entertainment cont.

Potential problems

A mediator who does not assume a position of authority may be deemed ineffective

Interactions with the mediator on egalitarian terms may cause discomfort

A party-centric process may leave the mediator and the parties feeling out of place

A mediator who holds back on giving guidance may be viewed as having abdicated his/her responsibilities

Potential problems cont.

Parties may be frustrated if prompted to take decisions without mediator assistance

Satisfying and maximising individual interests may not be considered “proper conduct”

Disputants may be more reserved and reticent, and prefer to communicate through non-verbal cues or in more subtle ways

Joint sessions for open discussion may be perceived as face-threatening

Potential problems cont.

Requiring parties to build a relationship where none is valued can cause discomfort

But not recognising that the relationship is the substance can give rise to a conflict of expectations between the mediator and the parties

Can an interests-based model work in an Asian context?

Functional paradigm of interests-based model fine

Operational paradigm may need adjusting

‘Interests based’ needn’t mean ‘facilitative’

This is ‘only one Asian perspective’

‘An Asian Perspective’

Be prepared to be more authoritative than you are comfortable with

Try and build a ‘connection’ with the parties – focus on commonalities

Be prepared to take more control and ownership of the process and the outcome

‘An Asian Perspective’ cont.

Be prepared to give guidance where appropriate - “start the ball rolling by providing a few options and then asking parties to contribute” – Lee and Hwee Hwee, “An Asian Perspective on Mediation”

Consider adopting a more evaluative style - “the mediator is expected to have an opinion on the interests, options, alternatives and standards of legitimacy” – Lee and Hwee Hwee, “An Asian Perspective on Mediation”

Settlement suggestions by the mediator common in practice to allow parties to save face

‘An Asian Perspective’ cont.

Remember potential broader interests:

“A dispute that appears to be primarily about money, for instance, might be mostly about protecting a principle, saving face, preserving relationships, or promoting particular community norms and collectivist interests”. Harold Abramson, “Selecting Mediators and representing clients in cross-cultural disputes”

‘An Asian Perspective’ cont.

Watch out for ‘face’ interests

May need to weigh up authority to settle with face concerns

Face may also be relevant to lawyers

‘An Asian Perspective’ cont.

Carefully consider the use of private and joint sessions (taking into account possible hierarchy/directness of communication and face issues)

Try and match the parties’ style of communication e.g. more body language, talking around the problem, face giving

Matching communication style can help build rapport between

mediator and parties

Mediator may need to translate, reframe, or coach where a mismatch in communication styles between parties

Keep an open mind!

Self-awareness fundamental

Don’t jump to conclusions

Expect the unexpected

Is there a difference?

Probably

‘Asian perspective’ only applicable to the extent elements of Confucianism, Collectivist inclination and face concerns are present

Keep calm and mediate!