Cultural Challenges in Cross Border Mediation

A. Introduction

The success of mediation in effective and quicker disposal of disputes has facilitated this form of disputer settlement as a serious alternative to litigation. The law makers are coming to a consensus that even if the issues are complex and that arbitration or litigation is inevitable, the issues can be narrowed by first submitting the dispute to mediation.1 The advocates of mediation both in US and in India2 cite similar reasons such as time consumption leading to heavy backlog of cases3, high costs to both the litigants and the state (in maintaining the courts and the judicial system) as compelling reasons to look outside the conventional form of dispute resolution.4 Moreover the effectiveness of mediation in settling disputes, in India is around 60%5 and that in the US is about 90%6, has convinced the lawmakers about the efficaciousness of the process.7

For an attorney who represent client's involved in cross-cultural mediation, familiarity with how cultural differences manifest themselves is crucial. Although an individual's nationality does not necessarily determine the attitudes and behavior he will bring to the mediation table, it can provide valuable guidelines as to which negotiation strategies are likely to work and which are likely to end in failure. By acquainting himself with the various culturally-grounded expectations of each participant, a well-prepared advocate can avoid misunderstandings and communicate more effectively. It is critically important to remember that our own cultures are largely invisible to us; they are simply our "common sense" understandings of the world.8 As Jimmy Carter, former US President and who led Camp David talks between Israel and Palestine says that the most important technique for an international negotiator is to put himself in the other party's shoes in order to better understand the other party's position and to develop a different perspective.9

Mediation is a voluntary process10 in which all parties involved in a dispute work with an impartial mediator, who assists them in finding ways to resolve their conflict.11 Despite mediation being a voluntary process, it is common for the results of mediation to be binding12 as the parties may agree in advance that if the dispute is resolved, the resolution will be memorialized in a written, enforceable document. 13 Unlike litigation or arbitration, mediation is not a win/lose determination.14 The aim of mediation is to enable the parties to relate to each other by reestablishing communication between the conflicting parties and the mediator is only a conduit.15 Typically, mediations are private and confidential, and are aimed at reducing hostility and preserving on-going relationships.16 The mediator, acting in a neutral capacity, facilitates continued negotiations by pointing out the benefits of a cooperative settlement versus a ruling by arbitrators or the courts. 17

The mediation process has generally four successive stages.18 The first stage is where an opening statement is made by the parties in each other's presence and that of the mediator. Second stage is the time for negotiation between the parties facilitated by the mediator's diplomacy. Once negotiations elicit potential settlement options, stage three involves assessment of the potential resolutions. Finally, the mediator tries to bring about an enforceable settlement agreement. An effective mediator has a challenging role as he/she is faced with a situation where the parties may be emotionally charged as a result of protracted, unsuccessful negotiations.19 One of the primary objectives of the mediator is to 'de-energize' the situation and get the parties focusing on the real problem and real solutions, and not to indulge in blame game and thus enable the parties to sustain a business relationship.20

Each one of these mediation stages presents the mediator with challenges. A skilled mediator facilitates a solution to the problem which is appropriate to the needs of both parties; the mediator does not decide as to who is right and who is wrong,21 nor does he force a decision on the parties.22 The first stage of mediation process is focused on building rapport between the parties, and the mediator's facilitate parties to explore their needs or interests, rather than focus on their stated positions and legal rights.23 Stage two requires the mediator to create an atmosphere of trust.24 The parties directly participate in the mediation and discuss their positions25 with the intention of reaching a mutually acceptable settlement. In stage three, the mediator must inspire receptiveness if the parties are to reach any lasting understanding.26 The fourth stage requires the mediator to call the parties to produce a fair, enforceable settlement on terms which they intend to uphold.27These concepts are grounded in the theory of integrative or interest-based negotiation which departs from the highly individualistic, adversarial approach found in litigation.28

Though mediation can be used to resolve virtually any type of conflict, 29 it is not appropriate for points of law or criminal actions or where one of the parties is compelled to 'send a message' to a larger audience.30 Conflicts are often based on individuals' perceptions that their counterparts are not upholding their duties and responsibilities 31 and by imposing a neutral third party, mediation may often dispel and change these perceptions and lead to a quick resolution of the dispute. Mediation is an excellent forum for resolution of construction disputes, contract disagreements, and equity claims. 32 It is well understood that the mediation may be appropriate within a larger litigated matter. 33 Often, parts of a bigger problem in litigation can be separated and more effectively settled through facilitated negotiations,34 something which the Indian courts have recognized35 and are encouraging in settling disputes.

Mediation as practiced in the community context uses a broad, facilitative style, meaning that the mediator is trained to guide the parties through the process, without being highly directive, and to encourage the participants to look broadly at the problem, not just the legal issues.36 The role of mediator in commercial disputes transgressing geographical, economic and political boundaries is extremely challenging and of utmost significance. Mediator neutrality is not synonymous with the notion of being "indifferent" in one's preferences as to whatever choices parties make, but is that the mediator does not have a tangible stake in the outcome of the process.37 The mediator has to cultivate the ability to appreciate and also subtly maneuver cultural labyrinths to win the confidence of not only the attorneys representing the disputing parties but also of the parties engaged in the dispute settlement.

From an individual perspective mediation is also a cathartic process than adjudicative-type processes.38 Acknowledgment is one of the most important communication skills in effective mediation.39 As emphasized by Albie Sachs40 of the Constitutional Court of South Africa, acknowledgment may be the most critical means to breaking the vicious cycle of human conflict.41 To acknowledge the views of one party or another is not to express any judgment (either positive or negative) but to register that the view has been heard and understood. Acknowledgment of one party by another (without apology) often defuses a conflict by allowing the combating parties to feel that their voice has been heard.42 The essence of mediation is not to bring about a win or a loose situation, but that of settlement of a dispute.

Historically mediations have been common in Christian, Islamic ADR, Jewish [and ancient Hindu43] tradition44 and can lead us to conclude that they were successful in settling disputes of commercial nature. Generally while dealing with cross cultural negotiations or mediation there is a general assumption that there are certain fixed do's and don't's: Do not offer your left hand to an Arab; learn how to deeply bow to a Japanese negotiator; understand the protocols for offering refreshment to a Turkish counterpart.45 It is important to keep in mind that culture is a superficial overlay that covers a universal human nature or culture, deep down, where it counts, all persons are fundamentally the same when it comes to reasoning, emotionality, needs, and desires. 46 This confusion arises because there is a generic human culture, "a species-specific attribute of Homo sapiens, an adaptive feature of our kind on this planet for at least a million years or so."47 But there are also local cultures-"those complex systems of meanings created, shared, and transmitted (socially inherited) by individuals in particular social groups"48 which have the ability to influence the mediation process. It is the coalescence of individual nature and generic human culture that needs to be considered in order to bring about an effective mediation between disputing parties.

B. Cultural complexities affecting mediation process

Culture may be defined as "the shared assumptions, values, and beliefs of a group of people which result in characteristic behaviors."49 While culture may change and adapt through contact with outsiders, the deep structure of a culture, including values and beliefs, tends to persist from generation to generation.50

Culture shapes perception which enables us to make sense of the world as we experience it through sensory receptors of sight, sound, touch, smell and taste. 51 Perception is both learned and selective and is influenced by what we have learned in our environment. 52 For example, a devout Hindu may see a cow as a revered incarnation of the goddess Laxmi, a Masai tribesman may see the cow as a measure of wealth and status, and an American may see it as a McDonald's "Happy Meal." 53

Similarities and differences across societies are explained and predicted theoretically using dimensions of cultural variability, called cultural value patterns.54 Value patterns are constructs for discussion of cultural differences among national groups and individuals. While everyone within a particular national group will not share the same values, a majority of individuals within that group will conform to similar values, creating what is called the "dominant culture." 55 Those who do not conform to the dominant culture will exhibit different cultural values, creating subcultures and co-cultures.56 Within the dominant culture and subcultures, individuals inhabit multiple levels of culture, from national identity to family, professional or workplace identity, or regional, gender and generational affiliations. These layers of cultural affiliation affect everything one does, including how to resolve conflict for oneself and how others should resolve conflict. The understanding of cultural cauldron is mandated when dealing in cross border disputes whether they are political, social or economic in nature. It is imperative for the mediator to be sensitive to issues involving culture57 in order to have an effective and result oriented dialogue.

Individualism-collectivism describes the relationship between the individual and larger society.58 Individualists believe it is important to satisfy the needs of the individual before those of the group as individual identity is more important than group identity; and individual rights are more important than group rights.59 One is expected to look after oneself, be self-sufficient, autonomous, independent, and personal freedom is highly valued in an individualistic society.60 Privacy is respected, and personal information is not shared except with close friends or family.61 Family groups typically include only parents and children.62 Only one-third of the world's populations live in individualist societies; the remaining two-thirds are collectivist.63 The United States dominant culture is highly individualistic, falling at the extreme end of the individualism-collectivism continuum64 and it gets reflected in its approach to settlement of disputes.

In a collectivist culture, identity is tied to a primary group, usually the family.65 Members of a collectivist society believe that the survival of the group will ensure each member's survival because the success of the group benefits the individual.66 A typical family group includes multiple generations, and extended family (adult children, aunts and uncles, and grandparents) often live together. 67 In a collectivist society, one is rarely alone as individuals belong to larger familial groups and look after each other in return for absolute loyalty from the group as a whole68 and thus the level of interdependence means that harmony is highly valued. Also there is a high recognition of individuals' interdependence, the importance of cooperation and the overriding needs of the group.69 Guatemala, Ecuador, Egypt, and Nepal are highly collectivist cultures, falling at the far end of the collectivist continuum. 70 Most of these countries have a common thread with India. They all were colonies of foreign Imperial empires and are as of today developing economies. They are also very religious societies and these religions also possess indispensable peacemaking tools and conflict resolution strategies that have inspired openness, fairness, empathy, compassion, and imagination.71 Also the fact that these are societies which have hundreds of years of continuous culture and tradition makes it imperative for people to evolve into a collective culture.

Litigation frames a dispute in adversarial terms. The enforcement of an individual or group's rights in opposition to the rights of another individual or group is a highly individualistic perspective. An individual seeking vindication in court has ranked group harmony as less important than assertion of his or her individual goals.72 Litigants do not typically consider the rights or needs of the opposing side, except to anticipate arguments in order to make better counterarguments.73

Geert Hofstede's mentions the 'gender' factor, wherein the question is whether the culture is more "masculine" in that it values assertiveness, competitiveness, and independence, or whether the culture is more "feminine" in that it values nurturing, cooperation, and relationships.74 Culturally as Indians are not individualistic and they depend on the family and support structure unlike the American society which is individualistic in nature. The older generation of Indians would take a collaborative or a feminine approach in settling a dispute. Conventionally background factors such as caste, family, education and social status were significant in influencing the behavioral habits of people. The traditional castes and communities 75 had their own mediating and conflict resolution remedies which were trenchantly relied upon and used effectively as an alternate to the courts and judicial process. The same cannot be said of the younger generations of Indian's who have studied in institutions based on the pattern of western education. Moreover the newly acquired economic success, since the liberalization of the economy has given them the confidence to deviate from the conventional collaborative norm to a more individualistic and masculine approach in settling disputes.

Anthropologist Edward T. Hall identified the communication style continuum called "low-context" to "high-context".76 Low and high-context refer to how much of the meaning of a communication comes from the surrounding context, as opposed to the actual words exchanged. 77

In a low-context culture, people tend to say exactly what they mean rather than to suggest or imply. The spoken word carries most of the meaning. People are not expected to read into what is not said or done to embellish the meaning. 78 Low-context communication is more common in individualistic cultures, where there is less reliance on shared experiences as a basis for understanding. As there is less shared experience and history, the speaker must convey background information and spell things out in detail. The United States is a very low-context culture.79

In a high-context culture, much of the meaning of a communication is already "programmed" into the receiver of the message as a result of the shared experience, connection and history of the sender and the receiver. 80 People are more likely to infer, suggest and imply than say things directly. Often no words are necessary to carry the message- a gesture or even silence is sufficient to communicate meaning. A critical component of most communication is to preserve the relationship and face-saving is important as it leads to a tendency to be indirect and avoid confrontation.81 Balance of power issues are a major concern for the participants as class, caste, status, wealth, position, education and gender are more clearly distinguished in India and can easily lead to challenges in mediation.82 Generally Indians hesitate to use direct eye contact, particularly with an individual of the opposite sex, in an effort to show respect. 83 There is a traditional aversion to confrontation in the Indian psyche coupled with characteristic poor bargaining power of developing economy. 84 Indians tend to be and expect others to be accommodating. 85 When completing an instrument to assess conflict style, most participants generally avoid compromise or are willing to accommodate. It is also difficult for Indians to open up completely to a third party about issues of concern to them.86 It is not customary in Indian society to share feelings openly, much less with strangers.87 But having said that the new breed of Indian entrepreneurs and the younger generation armed with modern education is largely more confident and generally follows the characteristics of low context culture, especially in commercial transactions and disputes. Indians are very familiar with the more competitive approach though appreciate the value of the collaborative approach.88

There is a strong correlation between high-context communication and collectivist cultures. For example, communication among group members is grounded in common perspectives and perception so there is little to spell out or explain to get the message across. Japan and China are very high-context societies.89 Another observation related to communication has to do with "I" statements. Mediation trainers in the U.S. often suggest to students that the use of "I" statements will facilitate clearer communication. 90 In India, the use of the word "I" is associated with ego or self. 91 In the Hindu religion, one is taught not to identify with the material body, but with one's soul. As a result, many participants are uncomfortable making "I" statements.92

There are two identified time orientations that vary and affect communication across cultures.93 A monochronic culture perceives time as linear, quantifiable, and in limited supply, where people believe that it is important to use time wisely and not waste it.94 Efficiency is important, which leads to a sense of urgency and the needs of people are adjusted to suit the demands of time, resulting in schedules and deadlines as it is considered most efficient to do one thing at a time.95 Unforeseen events should not interfere with plans, and interruptions are seen as a nuisance.96 Dominant United States culture is very monochronic97 where commitment to time is the essence of professionalism.

In a polychronic culture, time is perceived as limitless and not quantifiable and time is adjusted to suit the needs of people.98 Schedules and deadlines get changed and people may need to do several things simultaneously.99 It is appropriate to split attention between several people or tasks, and it is not necessary to finish one thing before starting another.100 Latin American, African, and Middle Eastern cultures all tend to be polychronic.101 In the Indian context a polychromic approach is generally followed especially if the transaction involves the state/government whereas if one is dealing with private parties or a business corporate the importance of time is appreciated and valued as in the monochromic culture. It is pertinent to keep in mind that most of the people working in the higher hierarchies of the business corporations are educated in top business/management/law schools, which have consciously imbibed the monochromic culture.

Another concept of significance during cross border mediations is of "Power distance".102 Measured from low to high power distance refers to the extent to which the less powerful members of a society "expect and accept that power (e.g. wealth, prestige, access to education and other benefits that enhance power) is distributed unequally." 103 In a low power distance culture, individuals see inequities as man-made and largely artificial where those with power tend to deemphasize it, minimize differences between themselves and subordinates, and delegate and share power to the furthest extent possible. 104 Subordinates are encouraged to take initiative and are rewarded for it, informality is encouraged and the criticism of authorities is considered appropriate. Discussion and consultation are desirable105 in case of difference of opinion. Parents in a low power distance society encourage children to be independent and to find their own way and teachers treat students as equals.106 The educational process is student-centered where arguing with a teacher is acceptable, and teachers encourage independent thinking and self-study. 107 The same dynamics exist in the workplace. The salary range between the boss and subordinates is relatively small, and privileges for more highly placed employees are few 108 and not conspicuous. It also contemplates people valuing equalization of power and competence over seniority. 109 The notion that anyone who is willing to work hard can achieve success as there are no traditional and conventional barriers is one of the essences of the "American Dream".110 People believe that there is no concept of "it is my birthright" and know that hard work and perseverance can make them realize their dreams111 and aspirations. This encourages people to inculcate an enterprising streak in them and hence people are assertive and more confident of themselves and this reflects in their approach to solving disputes, though it does, at times, lead to a rigid and confrontationist stand. The role of the mediators in such cases is very important as he/she has to be very subtle, mature and sagacious in mediating the dispute.

In a high power distance society, people tend to accept inequalities in power and status as natural 112and along with formality and hierarchy these are immensely valued.113 The prevailing attitude is that some individuals will have more power and influence than others. 114 Those with power emphasize their status and avoid delegating or sharing it and distinguish themselves from those without power or with less power. 115 Criticism or disagreement with those in authority by subordinates is viewed as undesirable. 116 The powerful are also expected to accept the responsibilities that go with power, including looking after those beneath them. 117 Subordinates are not encouraged to take initiative and are closely supervised. 118 Parties may want the most appropriate mediator for their problem based on various criteria.119 In a high power distance society, obedience to and respect for elders are essential, Family ties are close, and parents encourage dependence on the family throughout life. In school, students show great deference to teachers, often standing up when the teacher enters the room. 120 Teachers deliver information and students receive that information unquestioningly. 121 Students speak only when spoken to, and expect to receive knowledge from the teacher. 122 In the workplace, power is centralized, and the organization is very hierarchical where special privileges for the boss are accepted and expected, and wide salary gaps are common.123 In Indian society small percentage of people124 who have had access to elite school/college education will show selective behavioral patterns of low power distance society.125 This is critical differentiation as appreciation and understanding of this subtle difference will enable the mediation process to be smooth. In India though there is a healthy respect for seniority the matters are often decided on merit. A pertinent observation to be kept in mind is that the older generation of Indians are not 'risk takers' and will want a consensus, though will have to be comprehensively convinced in order to make them deviate from their regular course of action.126 But given similar facts the younger generation may follow a more innovative and aggressive approach in arriving at a solution.

In contrast with the fundamental expectation in the United States that the mediator be neutral unknown third party, Indians prefer working with a known and respected third party whom they trust to assist in the resolution of their dispute.127 Generally this person should be an elderly person and a younger person will not be preferred for such a task. Thus many mediators in India are retired judges, retired civil servants128, bankers, corporate leaders, professors or senior advocates as they inspire more confidence for the parties in dispute. Even in transnational transactions it is easier to do confidence building if the mediators are people who are older as they exude more confidence in the process of mediation and can have a better control while presiding a proceeding.

The power distance values exhibited in the family, at school, and in the workplace are also reflected in the relationship between government and its citizens. 129 High power distance cultures tend to have more autocratic forms of government, where connections are critical and unequal distribution of wealth and power are common.130 Low power distance countries tend to have more democratic governments where leaders stress equal rights and minimize differences in status among individuals.131 Status is based on ability and expertise rather than connection, wealth, or ability to use force. Those countries ranked as having the highest power distance are Malaysia and Guatemala.132 Austria and Israel are countries with very low power distance.133 The United States falls near the middle of the power distance continuum, but closer to the low end.134 Indian society would also fall in the middle of the power distance continuum, but closer to the higher end due to the fact that there is still lot of influence of ones caste, background and community. Though the general perception is that this is significant if one is dealing with the state run organizations, its influence in the private sector cannot be said to be that of total abstinence.

C. Bridging of complexities

It is a fact that people from diverse cultures resolve their internal and external conflicts in different ways.135 The mediator might consider approaching the problem as a value conflict rather than a culture conflict. 136 In a multiple-party international mediation, the mediator might want to consider the role the less powerful parties can play in influencing the stronger parties by appealing to common values.137 The Mediator can also consider talking about the cultural differences138 with the parties. He might choose to do it at the beginning of the session, during the opening statement139, or save it for a risky moment, as an ice breaker or a way to reframe the problem. The mediator might analyze the problem in terms of five cultural issues: language, assumptions, expectations, biases, and values.140 The mediator might keep a checklist for avoiding cross cultural miscommunication. 141 The use of internet for seeking information on history, culture, current events, and practices of a foreign country142 should be encouraged. This will lead to a coherent understanding of another's culture and to an extent appreciation of their idiosyncrasies and effectively facilitate the mediation process.

Taking assistance of Co-Mediators who are culturally similar to the parties, can have positive reassuring impact during negotiations. This does not mean that the Mediators from the same culture will understand their equal parties, but the perception of similarity that the parties perceive can be important to establish trust in the process and the Mediator.143

In today's globally integrating world many companies and professionals entail the services of consultancies that are specializing in the area of cross cultural businesses, so as to enable them to improve cross cultural skills.144 Proper sensitizations of not only the parties but importantly of the mediator should be encouraged as it will immensely benefit all the parties to understand and work better strategies in working out a comprehensive and agreeable solution. A leading commentator Jeswald Salacuse in his book, "Making Global Deals," stressed on the aspects of sensitivity to time, emotionalism, communication and personal style145 in cultural context. These are important variables that need to be identified and appreciated as because of culture or personality, a party can act in a negotiation with a win/lose approach (distributional negotiation) or a win/win approach (integrative negotiation). 146

David Victor in his book "International Business Communications"147 has laid down variables with an acronym LESCANT, which stands for- Language, Environment and technology, Social organization, Contexting, Authority conception, Nonverbal behavior, Template conception. These are some of the variables that are to be identified during cross cultural mediation and a proper sensitization of the adverse affect of their non-adherence should be kept in mind during mediation.

D. Conclusion

Increasing global business entails an increase in global disputes. Given the power, flexibility and efficiency of mediation, business firms should move forward to employ it as a means of resolving international business disputes. Mediation is a flexible and powerful tool that can facilitate effective resolution of international business disputes and is to be understood as a social procedure for addressing conflicts.148

For the process of cross border mediation to be an exponential success for all the parties, i.e. the disputing parties and their attorneys and the mediator(s), it is imperative that all the attorneys and the mediator have an intelligible understanding of each others cultural nuances and behaviors. From an attorney's point of view- flexibility, humility, openness to differences, and effective adaptation strategies, can make the mediation table a place where different cultures can meet to create a new culture that is comfortable for all. It can be argued that new culture would substitute curiosity for judgment and knowledge for ignorance, in order to adapt processes to take account of differing sets of cultural values while honoring all.

It is pertinent to keep in mind that local cultures alone do not refer to a regional or ethnic culture. Every profession creates cultures or subcultures depending on the background, education and profession. Economic modernization and social changes have brought about significant evolution for people to separate from their local identities. Cultural evolution is a very evolving characteristic and the technological and financial integration of the world is always going to excogitate new revelations while dealing with people and their disputes. It is this challenge that the legal fraternity has to adapt and incorporate in facilitation of disputes. Adequate training149 of cultural sensitizations will have to be incorporated in the curriculum for the attorneys interested in the practice of mediation. Its success will further reflect in the confidence of the disputing parties to engage in mediation as a credible and preferred means of dispute resolution.

[1] Kenneth P. Kelsey, Mediation: The Sensible Means For Resolving Contract Disputes, Conflict Resolution Center International, 204 37th St. Pittsburgh PA 15201-1859 see also Adrienne Krikorian Litigate or Mediate?: Mediation as an alternate to Lawsuits, available at http://www.mediate.com/pfriendly.cfm?id=886 (last visited 9/6/07); see alsoWhat is mediation ? available at http://www.adrsystems.com/faq6-mediation.htm (last visited 9/6/07).In August 2005, The Supreme Court of India has pronounced a landmark decision "Salem Advocate Bar Association, Tamil Nadu v. Union of India" where it held that reference to mediation, conciliation and arbitration are mandatory for court matters.

[2] Mr. Justice A.H. Ahmedi, the then Chief Justice of India in the year 1996 invited the Institute for the Study and Development of Legal Systems (ISDLS), USA to participate in a national assessment of the backlog in the civil courts. Studies were made in respect of the causes of delay in the civil jurisdiction in India. Available at http://delhimediationcentre.gov.in/hist.htm (last visited 8/29/2007). Daniel Q. Posin, Mediating International Business Disputes, 9 Fordham J. Corp. & Fin. L. 449, see also Hiram E. Chodosh, Reforming Judicial Reform Inspired by U.S. Models, 52 DePaul L. Rev. 351.

[3] See http://www.cedr.co.uk/index.php?location=/news/archive/20050908_207.htm (last visited 9/01/2007). see also the website of High Court of Maharastra http://legalservices.maharashtra.gov.in/faq.htm and http://legalservices.maharashtra.gov.in/mediation_&_conciliation.htm (last visited on 9/01/07); Madras High Court website http://www.hcmadras.tn.nic.in/adr.htm (last visited 9/01/07) and Delhi Mediation center http://delhimediationcentre.gov.in/rules.htm (last visited on 9/01/07)

[4] Justice S.B. Sinha, Judge, Supreme Court of India, Courts and Alternatives, available at http://www.delhimediationcentre.gov.in/articles.htm#conciliation (last visited 8/29/ 2007). See also Niranjan J Bhatt, Legislative Initiative For Court Annexed Mediation In India, available at http://www.mediate.com/articles/bhattN.cfm (last visited 8/29/2007) and see generallyNiranjan J Bhatt , Court Annexed Mediation,

lawcommissionofindia.nic.in/adr_conf/niranjan%20court%20annx%20med13.pdf (last visited 8/29/2007). See alsoSpeech by Justice Markandey Katju, on Mediation available at districtcourtallahabad.up.nic.in/articles/mediation.pdf (last visited 9/10/07)

[5] Delhi Mediation centre webpage- http://www.delhimediationcentre.gov.in/hist.htm (last visited on 8/29/2007)

[6] See generally summary by Richard Calkins of the original article by Rena Barron, Jennifer Morrow, Caucus Mediation: The Zen of Peacemaking Mediation available at

http://www.adrsystems.com/news/CaucusMediation.pdf (last visited 8/29/07)

[7] Sanhita Chakraborty, Mediation: Effective alternative to dispute resolution, available at http://www.hinduonnet.com/businessline/2001/07/02/stories/040220sa.htm. (last visited on 8/25/2007). See also Justice Manju Goel, Judge, High Court of Delhi, Successful Mediation in Matrimonial disputes- Approaches, Resources, Strategies & Management, available at http://www.delhimediationcentre.gov.in/articles.htm#conciliation.(last visited 8/30/07). See generally Ellen E. Deason, Procedural Rules for Complementary Systems of Litigation and Mediation Worldwide Notre Dame Law Review (vol. 80, 2004), available at http://ssrn.com/abstract=583141.(last visited on 9/6/07). See also Philip Zimmerman, "From Training to Practice as Neutral", CPA Consultant, Vol. 13, Issue 6 (Jersey City: May 1999), p. 9. mentions the statistics that for the period 1996-1999, show that 87% of the largest U.S. corporations used mediation services. In 1998, the Congress passed the Alternative Dispute Resolution Act (28 U.S.C. 651-658 (1998)) requiring all federal district courts to authorize the use of alternative dispute resolution in civil actions and bankruptcy adversary proceedings.

[8] Jayne Seminare Docherty, Culture and Negotiation: Symmetrical Anthropology for Negotiators, 87 Marq. L. Rev. 711.

[9] Jackson H. Ralston Lecture: Principles of Negotiation, 23 Stan. J. Int'l L. 1, 2 (1987). See also Guy Oliver Faure and Jeffrey Z. Rubin, Culture and Negotiation. Sage Publications,1993. The first section, "International Negotiation: Does Culture Make a Difference?" provides a general overview of the core issues, concepts, approaches, and theories surrounding the multiple inroads between culture and international negotiation.

[10] R. Seth Shippee, Blessed are the "Peacemakers": Faith-Based Approaches to Dispute Resolution, 9 ILSA J. Int'l & Comp. L. *237 citing Oklahoma Bar Association, Methods for Resolving Conflicts and Disputes, available at http://www.okbar.org/publicinfo/brochures/confbroc.htm (last visited 9/6/07).

[11] Kenneth P. Kelsey, supra note 1. See also Adrienne Krikorian Litigate or Mediate?: Mediation as an alternate to Lawsuits, available at http://www.mediate.com/pfriendly.cfm?id=886 (last visited 9/6/07); see alsosupra note 1, What is mediation ?

[12] Kenneth P. Kelsey, supra 1

[13] Id

[14] Id

[15] D.K.Sampat, Mediation in India available at http://www.mediate.com/articles/sampath.cfm# (last visited 8/29/07)

[16] R. Seth Shippee, supra note 10

[17] Kenneth P. Kelsey, supra note 1

[18] See generally Edward Brunet, Charles Craver, Ellen E. Deason, Alternative Dispute Resolution: The Advocate's Perspective, (3rd ed.) pg. 228- 245

[19] Kenneth P. Kelsey, supra note 1

[20] Id, see also Dr. Luis Miguel Diaz & Nancy A. Oretskin J.D., "Mediation furthers the principles of transparency and cooperation to solve disputes in the NAFTA Free Trade Area", Denver Journal of Intl. Law and Policy, Vol. 30, Number 1, *88 (2001).

[21] Id

[22] R. Seth Shippee, supra note 10. See generally Taking part in a Mediation: Cultural Pattern available at http://www.culture-at-work.com/xcmed.html (last visited 9/10/07)

[23] Julia Ann Gold, ADR Through a Cultural Lens: How Cultural values shape our Disputing Processes,

2005 J. Disp. Resol. * 309

[24] Jay Folberg and Alison Taylor, Mediation: A Comprehensive Guide to Resolving Conflicts without Mediation, 38 (San Francisco: Jossey-Bass) (1984).

[25] R. Seth Shippee, supra note 10; see also Edward P. Herns, What does mediator do? available at, http://www.mediate.com/pfriendly.cfm?id=918 (last visited 9/6/07)

[26] Supra note 23, *309

[27] Id and see also supra note 24

[28] Id, See generally definition of integrative bargaining- Brad Spangler, Integrative or Interest-Based Bargaining, available at http://www.beyondintractability.org/essay/interest-based_bargaining/ (last visited on 9/6/07)

[29] Tobi P. Dress, International Commercial Mediation and Conciliation, 10 Loy. L.A. Int'l & Comp. L.J. 569, 573 (1988).

[30] Kenneth P. Kelsey, supra note 1

[31] Supra note 29

[32] Kenneth P. Kelsey, supra note 1

[33] See generally Id

[34] Id

[35] Justice Manju Goel, Judge, High Court of Delhi, Successful Mediation in Matrimonial disputes- Approaches, Resources, Strategies & Management, available at http://www.delhimediationcentre.gov.in/articles.htm#conciliation. (Last visited on 3/29/07). The counseling centre has merged into the family court system and is looked upon as a model system for a family court. Section 9 of the Family Courts Act, 1984, Section 89 and Order XXXII-A of the Code of Civil Procedure, 1908 make it obligatory for the court to give a fair chance to a conciliated or negotiated settlement before adjudication is embarked upon. Section 23 of the Hindu Marriage Act, 1955 focuses on judge's role in attempting reconciliation. See generally Comparative Dispute Management, "Court-connected Mediation in Japan and Germany" available at http://papers.ssrn.com/abstract=293495 (last visited on 9/10/07)

[36]Supra 23, * 309

[37] Joseph B. Stulberg, Should Mediator be neutral? Journal of American Arbitration (vol. 4, 2005), also available at http://ssrn.com/abstract=896552 (last visited 9/12/07). See generally Charles Parselle, The Qualities of a Mediator, available athttp://ezinearticles.com/?The-Qualities-of-a-Mediator&id=43323 (last visited on 9/06/07). See generally, Hilary Astor, Mediator Neutrality: Making Sense of Theory and Practice available at

http://ssrn.com/abstract=998202.(last visited on 9/05/07)

[38] Supra note 29,* 573

[39]Hiram E. Chodosh, Mediating Mediation in India citing William Ury, Getting Past No 40 (1991), available at http://lawcommissionofindia.nic.in/adr_conf/chodosh4.pdf (last visited 9/06/07)

[40]He was one of the architects of the Truth and Reconciliation Commission in South Africa.

[41]Hiram E. Chodosh, supra note 39 citing Albie Sachs, Soft Vengeance of a Freedom Fighter (2000).

[42] Supra note 1

[43] Here I use Hindu more in a cultural sense, than religious sense. For the purpose of this discussion one has to understand "Hindu" as India.

[44] See R. Seth Shippee, supra note 10, 237

[45] Jayne Seminare Docherty, Culture and Negotiation: Symmetrical Anthropology for Negotiators, 87 Marq. L. Rev. 713 citing from Kevin Avruch & Peter W. Black, Ideas of Human Nature in Contemporary conflict resolution theory, 6 Negotiation J. 221(1990).

[46] See generally Kevin Avruch, Culture and Conflict Resolution 10 (1998). (Published by United States Institute of peace press)

[47] Id

[48] Id

[49] Craig Storti, Figuring Foreigners Out- A practical guide, chapter 1,* 5 (1999) (Intercultural press)

[50] See Larry A. Samovar & Richard E. Porter, Intercultural Communication 9 (9th ed. 2000)

[51] Supra note 23

[52] Id

[53] Id

[54] Id citing Geert Hofstede, cultural consequences 1-36

[55] Supra note 23,* 289 citing Milton J. Bennett, Intercultural Communication: A Current Perspective, in Basic Concepts of Intercultural Communication 1, 3 (Milton J. Bennett ed., 1998). Dominant culture can be defined as: one of five final cultural categories (a subtexture of social and cultural texture), its rhetoric presents a system of attitudes, values, dispositions, and norms that the speaker either presupposes or asserts are supported by social structures vested with power to impose its goals on people in a significantly broad territorial region. See

http://www.religion.emory.edu/faculty/robbins/SRI/defns/d_defns.html

[56] Supra note 23, 295

[57] See generally, Marjorie H. O'Reilly, Race, Culture and Mediation, Family Advocate, fall 2004, 27- FALL Fam. Adv.37.

[58]Supra 23, 296

[59] Id , citing Geert Hofstede, Culture's Consequences (1980).

[60] Id

[61] Id

[62] Id

[63] Id citing Stella Ting-Toomey & John G. Oetzel, Managing Intercultural Conflict Effectively 30-31 (2001).

[64] Isabella R. Gunning, Diversity Issues in mediation: Controlling negative cultural myths, 1995 J. Disp. Resol. 55, 83-86; see also Julia Ann Gold, supra note23, citing Geert Hofstede, Culture's Consequences 1-36 (2d ed. 2001). Though the caveat is that there is a possibility of exceptions to this general behavioral understanding. See generally Pitts, David W., Moon, Yuseok and Bingham, Lisa B., "Individualism, Collectivism, & Transformative Mediation" . IACM 15th Annual Conference. * 13 available at SSRN: http://ssrn.com/abstract=305165 (last visited 9/5/07)

[65] Supra note 23, 296

[66] Id

[67] Id

[68] Julie Barker International Mediation: A better alternative for the Resolution of Commercial disputes: guidelines for a U.S. negotiator involved in an International Commercial Mediation with Mexicans, 19 Loy. L.A. Int'l & Comp. L.J. 1.

[69] Geert Hofstede, Culture's Consequences (1980).

[70] Supra note 23, 289 citing Stella Ting-Toomey & John G. Oetzel, Managing Intercultural Conflict Effectively 30-31 (2001).

[71] See Marc Gopin, From Eden to Armageddon,199-203, Oxford University Press (2000).

[72]Supra note 23, 303

[73] For example, in a study by Michele J. Gelfand and Sophia Christakopoulou, American participants were paired with Greek participants to conduct a negotiation via email over a two-week period. The study showed that the American (individualist) participants "claimed more value to themselves throughout the negotiation, learned less about the priorities of their counterparts, and engaged in behaviors to enhance their own status in comparison to their Greek counterparts." see Michele J.Gelfand & Sophia Christakopoulou, Culture and Negotiator Cognition: Judgment Accuracy and Negotiation Processes in Individualistic and Collectivistic Cultures, 79 Org. Behav. & Hum. Decision Proc. 248, 263 (1999).

[74] See Geert Hofstede, Culture's Consequences- comparing Values, Behaviours, Institutions and Organizations across Nations (1980). Geert Hofstede Analysis of India available at http://www.cyborlink.com/besite/india.htm.India has Masculinity as the third highest ranking Hofstede Dimension at 56, with the world average just slightly lower at 51. The higher the country ranks in this Dimension, the greater the gap between values of men and women. It may also generate a more competitive and assertive female population, although still less than the male population.

[75] Generally the community and family elders stepped in to settle the disputes. See generally Wall, James A., Arunachalam, Vairam and Roberts Callister, Ronda, "Indian and U.S. Community Mediation" . 16th Annual IACM Conference Melbourne, Australia. Available at SSRN: http://ssrn.com/abstract=398160 (last visited on 9/10/07)

[76]Supra note 23, *298, See generally Edward T. Hall, Beyond Culture 105-128. See also Communicating Across Cultures available at http://www.culture-at-work.com/highlow.html (last visited on 9/10/07)

[77] Id ,* 298, and Edward Hall, * 105-128

[78] Id, *298

[79] Id, *298 citing Stella Ting-Toomey, Communicating Across Cultures 9 (1999).

[80] Id *296

[81] Id *298

[82]Geetha Ravindra, Institutionalizing Mediation in India, available at http://www.courts.state.va.us/drs/resolutions/june2002/institutionalizing.htm l(last visited 8/25/07).

[83] Id

[84] ABA guide to International business Negotiations, Cyril Shroff, International Business Negotiations in India, 479, * 489. See also Culture at work, communicating across cultures, High and Low context available at http://www.culture-at-work.com/highlow.html (last visited on 9/10/07).

[85] Supra note 82

[86] Id

[87] Id

[88] Id

[89]Supra note 23, *298

[90]Supra note 82

[91] Id

[92] Id. But this seems to have rubbed off on people belonging to other communities also. So one will also find Muslims, Buddhists, Sikhs and Christians indulging in similar behavior.

[93] Edward T. Hall, The Dance Of Life: The Other Dimension Of Time 44-47 (1989);

[94] Supra note 23, *298. See generally Michelle LeBaron, Culture- Based Negotiation Styles available at http://www.beyondintractability.org/essay/culture_negotiation/ (last visited 9/7/07). Monochronic culture is defined as "one thing at a time" and "time is money" are important concepts - and interpersonal relations are subordinate to the time. Available at http://intermundo.net/glossary_term.pl?mid=20 (last visited on 9/10/07)

[95] Id

[96] Id

[97] Id citing Craig Storti, Figuring Foreigners Out 5 (1999)

[98] Supra note 23. Polychronic culture is defined as In polycronic cultures, multiple tasks are handled at the same time, and time is subordinate to interpersonal relations. Available at http://intermundo.net/glossary_term.pl?mid=19 (last visited on 9/10/07)

[99] Id

[100] Id

[101] Id

[102] Id citing Geert Hofstede, Cultures And Organizations: Software of the Mind 5 (1997).

[103] Julia Ann Gold, supra note23, 298 citing Geert Hofstede, Cultures and Organizations: Software of the Mind 5 (1997). See also Geert Hofstede Analysis of India available at http://www.cyborlink.com/besite/india.htm (last visited 9/10/07). India has Power Distance (PDI) as the highest Hofstede Dimension for the culture, with a ranking of 77 compared to a world average of 56.5. This Power Distance score for India indicates a high level of inequality of power and wealth within the society. This condition is not necessarily subverted upon the population, but rather accepted by the population as a cultural norm.

[104] Julia Ann Gold, supra note 23, 298

[105] Id

[106] Id

[107] Id

[108] Id

[109] Geert Hofstede, Culture's Consequences (1980). Geert Hofstede has outlined four cultural dimensions that often confront the international mediation of business transactions and seem to explain value differences among cultures that can affect the negotiation and mediation process.

[110] The term was first used by James Truslow Adams in his book The Epic of America which was written in 1931. He states: "The American Dream is "that dream of a land in which life should be better and richer and fuller for everyone, with opportunity for each according to ability or achievement. (Pg. 214-215, also pg.404)

[111] See generally Graham Thompson, The Business of America: The Cultural Production of a Post-War Nation. (Pluto Press, 2004); See generally Andrew Hoberek The Twilight of the Middle Class: Post-World War II American Fiction and White-Collar Work. Princeton and Oxford: Princeton UP, 2005.

[112] Supra note 23, 298

[113] Geert Hofstede, Culture's Consequences (1980).

[114] Supra note 23, 298

[115] Id

[116] Id

[117] Id

[118] Id

[119] See Chester A. Crocker et al., Ready for Prime Time: The When, Who and Why of International Mediation, 19 Negot. J. 151, 151-67 (Apr. 2003).

[120] Supra note 23,298. See also Geert Hofstede Analysis of India available at http://www.cyborlink.com/besite/india.htm (last visited 9/10/07). The Geert Hofstede analysis for India shows a large power distance society and all other measures are relatively moderate. This would be indicative of the fact that India is in the midst of change. The traditional caste systems has been outlawed, however the large power distance score indicates that the attitudes still remain.

[121] Id

[122] Id

[123] Id

[125] See generally, Jan Nijman, Mumbai's mysterious middleclass, International Journal of Urban and Regional Research, Volume 30 Issue 4 Page 758-755(December 2006) and also see Gurucharan Das, India's growing middle class available at http://www.theglobalist.com/DBWeb/StoryId.aspx?StoryId=2195 (last visited on 9/1/2007), see alsoGurucharan Das, India Unbound- From Independence to the Global Information Age( Profile Books Ltd.) (2002).

[126] Geert Hofstede, Culture's Consequences (1980). Hofstede's model talks whether people in the culture are risk takers or risk avoiders. Risk avoiders are averse to risky and ambiguous situations. They prefer safe behavior and conformity. Risk takers are more open to new ideas and problem solving.

[127] Supra note 82

[128] Id, see generally Steven A. Certilman, Judges as Mediators: Retaining Neutrality and Avoiding the Trap of Social Engineering, (2007) 73 Arbitration 24-30.

[129] Supra 16, 298

[130] Id

[131] Id,299

[132] Id, 300

[133] Id, 298

[134] Id

[135] Walter A. Wright, "Cultural Issues in Mediation: A practical guide to individualistic and collectivist paradigms", 9 Alternative Resolutions, 18, section (F) (1998).

[136] See Cynthia Savage, Culture and Mediation: A Red Herring 5 Am. U.J. Gender & Law 269 (1996).

[137] See Mary Jo Larson, Low Power Contributions in Multilateral Negotiations: A Framework Analysis, 19 Negot. J. 133 (2003).

[138] Supra note 136

[139] Donna M. Stringer, "Bridging Cultural Gaps in Mediation", American Arbitration Association Dispute Resolution Journal, volume 56, number 3, 34 (August / October 2001).

[140] See Selma Myers & Barbara Filner, Mediation Across Cultures: A Handbook About Conflict & Culture 39 (1993).

[141] Id

[142] ABA guide to International business Negotiations, Jeanne M. Hamburg, Negotiationg Across Cultures in the New Millennium, 57 , *59

[143] Donna M. Stringer, "Bridging Cultural Gaps in Mediation", American Arbitration Association Dispute Resolution Journal, volume 56, number 3, 33 (August / October 2001).

[144] Aperion Global is a Consultancy that the author has worked for in this area, delivering lectures to U.S. companies about the cultural mannerisms of people in India and how to deal with people while managing transactions. See generally http://www.aperianglobal.com/

[145] Jeswald Salacuse, Making Global Deals: What Every Executive Should Know About Negotiating Abroad 58-70 (1991).

[146] Id

[147] David A. Victor, International Business Communication (New York: Harper Collins, 1992)

[148] Supra note 37

[149] In the US, the states of Virginia and North Carolina provide for certification program for mediation, though state-certification is optional. See also Kenneth P. Kelsey Supra note 1. The High Courts of Madras, Maharastra and Delhi had encouraged training programs to enable lawyers to acquire effective mediation techniques. See Supra note 4 Speech by Justice Markandey Katju, on Mediation.