In the arena of international collaborations and disputes, mediation has become increasingly important to ensure regulated and culturally sensitive communication. Seeking to explore optimal types of mediation, the Fordham Law Dispute Resolution Society held its 11th annual symposium, “International Commercial Mediation: How Culture and Regulation are Affecting the Business and the Practice of Mediation,” on November 16. The symposium drew professionals from Asia, Europe, and North America to share their insights into and experiences of the burgeoning field of mediation.
“The ecosystem, the institutions, the law in the broad sense of the word, and culture are inextricably intertwined, and it makes for such a rich field,” said Nadja Alexander, professor of law at Singapore Management University and academic director at Singapore International Dispute Resolution Academy, during the keynote address, “Rethinking the Mediation Ecosystem: The Interplay of Law, Institutions and Culture.”
Part of the challenge, Alexander explained, is that the definition and practice of mediation vary by culture. And culture, she elaborated, can be hard to see. Just as a fish does not know it dwells in water until it jumps out of it, said Alexander, a person does not understand his cultural context until he experiences others. Once a person steps away from his ideological landscape, he might find, for example, that neutrality and confidentiality are assumptions of his unique social milieu.
To exemplify cultural differences, Alexander drew comparisons between mediation in Germany and Singapore. She expressed the need to assess the triggers, process, professional standards, and rights and obligations of international forms of mediation.
Alexander raised the question of how one may exhibit a culturally responsible mind while implementing a strong mediation system. She maintained that people need to move beyond the traditional facilitative / evaluative mediation dichotomy and be willing to manipulate flexible and fixed regulations.
“By playing with regulatory form, you can possibly be responsive to culture, offer a flexible process, and at the same time offer robust regulation,” said Alexander. “You just have to ask yourself the question, What aspects of mediation do we want to regulate, and how?”
Following Alexander’s address, a panel of professionals further discussed mediation’s relationship to culture, nation, and regulation. Fordham Law Professor Jacqueline Nolan-Haley, director of the School’s ADR and Conflict Resolution Program, moderated the panel.
Guido Carducci, a law professor at Université Paris-Est who is also an arbitrator and mediator, discussed the differences in the mediation practices of Italy, France, and the EU. Italy, he explained, has mandatory mediation meetings for parties in first instance proceedings. French law puts forth more specialized mediation regimes, such as contracts that require parties to work amicably. The EU’s sophisticated system, Carducci showed, uses various ADR techniques in addition to mediation.
Deborah Masucci, co-chair of the International Mediation Institute, focused on the regulation of mediators. Most mediators, she explained, are selected based on personal and professional recommendations. Masucci concluded that licenses and certifications should be used to prove credibility and professionalism. Governments, she argued, have the greatest responsibility to install just regulations.
“Governments still have the most important role in creating change,” said Masucci.
Ilhyung Lee, a law professor at the University of Missouri, addressed mediation’s cultural component with an eye toward East Asia’s practices of Confucianism, collectivism, harmony, and mianzi (“saving face”). Lee highlighted the importance of what he called “context communication”: the culture-specific message that words convey. As an example, Lee showed how the response “Yes” can mean either “Yes, let’s do that” or only “Yes, I heard you.”
Michael Young, mediator and arbitrator of Judicial Arbitration and Mediation Services, reflected on his own experiences in international mediation. Building on Lee’s attention to words, Young discussed how the threat of miscommunication, a risk for anyone, is compounded when a language barrier is present. Mediators, he explained, need to be wary of misunderstandings among parties.
“My experience particularly in mediations where people don’t speak the same language is the need for the mediator not only to listen very carefully but [also]to be not reluctant to ask clarifying questions and to make sure you understand something before you take the next step,” said Young.