Learning Lessons

We are trained, as neutrals, not to think of mediation in terms of “success” or “failure.” If the disputants abandon mediation, it is because litigation is the best dispute resolution mechanism for them. Nevertheless, as professionals craving professional satisfaction, we tend to define a successful mediation as one that produces settlement and does not lead to a hearing and judgment. By this measure, my first attempt at mediating a small claims case was a failure. This early setback, nonetheless, became an opportunity to explore and fill the gaps in my knowledge, which, in this case, centered around the role of culture in mediation.

In my first mediation, both plaintiff and defendant were first-generation immigrants. The plaintiff was from Chile. Of the two parties, he was the more receptive to mediation. The defendant was Russian, and she was more skeptical of the process. The dispute was rooted in the sale, for $8,300, of an early-1990s Mercedes-Benz. The sale was listed as “final” in the classified ad, but the plaintiff argued that he’d instructed the defendant not to cash his check until the car passed inspection. The plaintiff’s mechanic found one of the catalytic converters missing, with a straight pipe welded to the chassis in its place. No vehicle could pass the California state smog test in that condition; it would be illegal to drive.

Both plaintiff and defendant agreed that she cashed his check immediately after the sale, and that he drove the car to her home later that week, unannounced. There, he raised his voice and waved his arms, demanding a refund. He refused to leave the premises until ordered to do so by the very police he had summoned to the scene. The officers advised him that his grievance was a civil, not a criminal, matter. The plaintiff admitted he’d reacted inappropriately, but remained upset at the defendant for selling him a faulty vehicle.

The plaintiff wanted to return the vehicle for the maximum damages allowable in small claims court - $7,500. In a bid for my sympathy, he told me he was willing to accept an $800 loss because he felt “stupid” for trusting the defendant, and wanted to “punish himself” for his error. I found him to be emotional but congenial - by turns angry, sad, and ashamed, but able to divorce personalities from problems. It took real effort to determine his bottom line - he struck up random conversations as I uncovered his true interests and assembled a settlement proposal. The Russian defendant was even more difficult - secretive, combative, and stubborn. She was indifferent to the plaintiff’s concerns and did not regret selling him the defective vehicle. She denied knowing that the part was missing and suggested that he may have even removed it himself. As long as she felt protected by the terms of the deal, she would not negotiate. It was only by instilling the fear of a judgment that I convinced her to bargain.

After two hours of private caucusing, we had two options: a cash settlement (he wanted $1000; she offered $800) or an agreement that the defendant would choose a garage and pay for the installation of a new converter. I had a written agreement, with blank spaces left for the dollar value and the name of the garage. The ever-conciliatory plaintiff said he would sign it if the defendant would give him $900 or name a garage. The defendant was taking turns on a mobile phone with her daughter when I presented her with this final proposal.

The defendant said she’d located a garage that would replace the converter for $600. She would therefore only give the plaintiff $600. Would she, then, agree to pay the mechanic to fix the car? Could she give me the garage’s name? She demurred; $600 was the final offer - a classic “deliberate deception” seemingly plucked from the pages of Getting to Yes. In an attempt at independent verification, I asked her to put me on the phone with the garage. She refused. Caught in a lie, she abruptly demanded an end to the mediation, saying her husband had instructed her to proceed to trial. I asked to speak with him and was told that he only spoke Russian. Intentional or not, this was another strategy taken straight from the Fisher/Ury playbook. The husband’s “empty chair” created an “ambiguous authority” that precluded settlement. Mercifully, the arrival of the bailiff signaled an end to our mediation. Defeated, I followed both parties into the courtroom to observe the hearing.

Their litigation styles were diametrically opposed and unequal in effect. While the plaintiff’s jovial manner had worked to his advantage in closed mediation, the defendant’s cold, analytical approach was much stronger in open court. She calmly made her case, not volunteering any more information than required to prove her arguments or answer the judge’s questions. The plaintiff struggled to reconcile his conversational style with the formal demands of the court. Asked why he limited his potential award by litigating in small claims and not limited jurisdiction, he lamented as before, nearly in tears, “to punish myself.” To punish himself for what, the judge inquired. “For being stupid,” he replied. The judge was unmoved.

The court eventually awarded the plaintiff $1008.50 - the cost of replacing the catalytic converter. I took some comfort in the fact that the ultimate judgment was so close to the abandoned agreement, but I could not understand why the faithful application of my mediation training had not produced a settlement. I would eventually learn that a skillful mediator must adapt his or her style to the parties’ cultural differences, and that failure to do so can escalate the conflict.

Chilean culture has been categorized, like Brazilian and Arab cultures, as multi-active, or poly-chronic, in nature. Poly-chronics take on several different tasks simultaneously, assigning priority moment-to-moment based on stimulus, convenience, and inspiration. Generally, they prefer to acquire information through oral dialogue. Conversely, Anglo-American and Northern European cultures are considered monochronic, or linear-active. We tend to respect orderly timetables, approaching problems and opportunities one at a time, one appointment at a time, and we tend to rely on printed media over word-of-mouth.

Polychronic, multi-active behavior has historically been interpreted by more linear-active, monochronic cultures as chaotic, undisciplined, and disrespectful.[1] When placed in a monochronic environment, a polychronic can become anxious or despondent, and have trouble articulating their position. An organic, non-hierarchical setting like the mediator’s private caucus seems friendlier and more natural to them. This explains the Chilean plaintiff’s warmth and openness in mediation, his free expression of positive and negative emotion, his conversational, “disorganized” approach to the process and despondence when faced with the formal requirements of Van Nuys Small Claims Court.

Russian culture is closer to the middle of the polychronic/monochronic or multi-active/linear-active spectrum, near French and Belgian culture, but with its own unique characteristics rooted in Russian history and geography.[2] Over time, the Russian people developed a keen sense of individual vulnerability and the necessity of clan ties due to their inter-group struggle for survival on the wintry steppes. This promoted a closed culture of patience, restraint, and distrust in which only the in-group can be trusted. To procure a settlement in this case, I would have needed the consent of the defendant’s daughter and husband. In retrospect, I should have asked about her family early, and invited her to consult with them before mediating.

Centuries of totalitarian governance cultivated a tolerance of corruption and secrecy, while reinforcing the primacy of clan and family groups for survival in the face of arbitrary power. Thus, Russians are tough negotiators, who view willingness to compromise as a sign of weakness. This naturally leads to reactive devaluation, as in the last minutes of negotiation when the defendant interpreted the plaintiff’s eagerness to settle as a sign that her offer was too high. Russians loathe weakness and project power, but they do not look to institutional authority to protect their interests. (It was the Chilean plaintiff, not the Russian defendant, who called the police to the defendant’s home.) The defendant resented the intrusion of the court, and myself as mediator, into her dispute with the plaintiff.

Russians have learned from their tragic history not to look to state authority for justice. They may, however, enjoy subverting it to their advantage. Mediation may become more attractive, therefore, if characterized as a way to “beat the system.” In private caucus with the defendant, I should have emphasized the arbitrary and capricious nature of the American legal system. I might have characterized going to court as naïve and suggested that mediation would afford her a greater opportunity to employ cunning and stealth against the plaintiff.

We know that mediation works best when we steer the discussion away from positions and toward underlying interests held by one side that would be relatively painless concessions for the other. Culture can inform this delicate equation. For Russians, personal relationships and status come first, with money only relevant to the extent that it relates to either interest. Pride was perhaps the defendant’s central interest, but of obviously less importance to the plaintiff, as evidenced by his willingness to lament his “stupidity” to anyone who would listen. He might have obtained major concessions if he hadn’t insisted that the defendant admit her deception. Instead, he could have offered to apologize for causing a scene in her driveway. In private caucus, he actually blamed his “hot Latin blood” for this indiscretion-making such an admission in a joint session might have satisfied the defendant’s need to restore lost face.

Attribution theory explains how, as participants in a cultural exchange, we unconsciously attribute motives to the other side based on our own cultural construct-what our motivation would have been, had we acted in the way we observed the offender acting. This is especially difficult in conflicts between parties from high- and low-context cultures. Russian culture is high-context, meaning that social cues are rarely communicated directly, with fixed consensus and implicit cultural rules governing behavior in every situation. North and South American cultures, by contrast, are lower-context, with explicit oral and written information providing most behavioral cues. Misinterpretations ensue, and conflict escalates.

To a high-context culture, low-context cultures can seem loud, excessively familiar, blunt, literal, authoritarian, and condescending - one feels overwhelmed with outside feelings and opinions, harassed by over-regulation of one’s behavior and outsiders’ refusal to respect one’s dignity and privacy. This explains the Russian defendant’s reluctance to engage with a mediator who bombarded her with rules and a plaintiff who bombarded her with feelings. In a low-context culture like ours, high context behavior appears confusing and obscure. To an American or a Chilean, Russians seem never to say what they want or how they feel, and they may become angry and “shut down” for apparently no reason at all.

I was frustrated at the defendant’s apparently willful obscurity, and gravitated toward the gregarious plaintiff, who offered concession after concession. My private caucuses with the plaintiff were longer and more frequent than those I conducted with the defendant, which naturally aroused her suspicion of me and of the process. I should have spent more time with her, tried to read her nonverbal cues, and learned how to send a few of my own.

While inter-cultural elements complicate any conflict, if we approach mediation with a working knowledge of cultural models, we will be better able to interpret the true interests that underly each side’s position. Switching cultural lenses between private caucuses with the parties, we can translate their respective concerns and prevent the misunderstandings that could result from direct engagement. If I’d understood this on my first day as a mediator, I may have been able to facilitate a settlement that addressed the parties’ underlying interests more adequately than the final judgment.

[1] Carley H. Dodd, Cultural Differences in Information Processing, in CROSS CULTURAL NEGOTIATIONS AND DISPUTE RESOLUTION: READINGS AND CASES 25, 27 (Grant R. Ackerman, ed., 2003).

[2] Richard D. Lewis, WHEN CULTURES COLLIDE - LEADING ACROSS CULTURES, 373-375 (3rd ed., Nicholas Brealey International 2006).

by Kristopher Michaud

Kristofer is a practicing attorney, professional neutral, and writer on mediation and international law. He maintains a private practice in criminal and family law in upstate New York, while working toward his Masters in Dispute Resolution at Pepperdine School of Law in Malibu, California. Kristofer graduated from the B.C.L./LL.B combined program at the Law School of McGill University in Montreal, Canada.