The increasing globalisation of commerce and the growth of multi-national companies have also resulted in an increased use of arbitration to resolve commercial disputes, domestically and internationally. Accompanying this growth is a greater need for arbitrators and advocates to develop critical cross-cultural competency skills. More and more parties to arbitrations hail from different legal systems, social traditions, faith-based customs, and family backgrounds. These disparate perspectives permit disputants to look at the same set of facts and circumstances and interpret them differently. They then bring those paradigms with them as they engage in the arbitration process, affording endless opportunities for cross-cultural misunderstandings, even among citizens of the same country. Thus, developing cultural sensitivity and cultivating awareness of subtle statements and actions in an arbitration proceeding can lead to prompt recognition and identification of cultural issues, so that they can be addressed in the most useful manner. This is neither simple nor straightforward, but well worth the effort.
Culture can arise in an arbitration proceeding at almost every juncture. Cultural issues may affect how the parties select the arbitrator(s). They may:
- Shade what and how issues are raised and discussed during a preliminary hearing.
- Influence how the process is structured.
- Affect how a party’s conduct during the process is perceived by the arbitrator and opposing party.
- Colour how the evidence adduced at the hearing is viewed or received by the arbitrator.
- Have an impact on how credibility determinations are made.
Preliminary hearing
At minimum, identifying cultural issues begins at the preliminary hearing, where the arbitrator, the parties’ counsel, and perhaps even the parties themselves will begin to get a sense of how information is being received and transmitted. This might lead to recognition that cultural differences are influencing the observed conduct. Then, the parties, guided or facilitated by the arbitrator, may choose to probe whether modifications in the “typical” or “standard” process need to be made. The arbitrator and parties should stay attuned to this heightened sensitivity to cultural differences during subsequent status conferences and information exchange disputes, as the positions taken and the kinds of arguments made by the participants can afford invaluable insights into how differing cultural frameworks are affecting the process.
Testimony at evidentiary hearing
Perhaps most indicative of the importance of cultural issues relates to the presentation of testimony at the evidentiary hearing. Differing forms of communication can have a profound effect on how the evidence will be received and weighed. For example, as explicated in Edward T. Hall’s 1976 book “Beyond Culture,” most East Asian cultures are described as being “high-context,” meaning that much is left unsaid, letting the background culture explain and fill in the gaps. In such a culture, choice of words become highly important because just a few can communicate not only a large amount of information, but a complex level of information, to those sharing that same cultural background, while also communicating less effectively to those who do not. By contrast, the USA is described as a “low-context” culture, meaning that the speaker typically needs to be more explicit, and the value of any single word is less important. Just imagine how these cultural differences can manifest themselves in the quantity and quality of the answers that a witness from East Asia might give in response to traditional American-style trial examinations. That witness may appear less forthcoming, curt, and perhaps even evasive. All of this has a marked impact on how others may assess that witness’ credibility and, ultimately, how the testimonial evidence is received and weighed.
Party compliance with contracts
In some cultures, like in the USA, strict adherence to the language of the contract is upheld as paramount. However, in other cultures, like in China, the obligations embraced in the contract are meant to describe the overall relationship between the counter-parties; therefore, technical compliance with its terms and conditions is not valued as highly as how the parties treat each other. The contract simply functions as a document that embodies and reflects the parties’ commercial relationship. Understanding this view can have tremendous implications for assessing a party’s good faith in complying with the terms and conditions of the contract.
Adjusting to cultural differences
How should an arbitrator or an advocate adjust once cultural differences arise? With parties from a high-context culture background, emphasis could be placed on ensuring that those witnesses are permitted additional time to tell their stories. Perhaps more leeway should be afforded to counsel to examine using leading questions. Much can also be gleaned from norms developed in the international arbitration arena, where cultural differences have been particularly germane in areas such as arbitrator disclosures, witness preparation, and witness examination.
Additionally, despite adherence to being fair and impartial, arbitrators hold implicit biases too, and it takes time to both recognise and account for them. The key is to make course corrections at a human level by being more self-aware and observant of whether there are cross-cultural issues in the proceedings. Being sensitive to the parties’ needs and letting them fully present their case consistent with their own preference and cultural background can ameliorate many of the communication differences and lead to better information processing. Because arbitration is customisable and flexible, it allows the arbitrator to account for the different cultures of the participants.
Resources
Lest this all sounds too complicated, there are numerous resources to help arbitrators and advocates educate themselves. Aside from legal sources (books and treatises; national, local, and specialty bar associations; law faculty, etc.), there are:
- Non-legal (psychological, sociological, and anthropological) journals and studies.
- Conferences and seminars.
- Cultural community leaders/members and cultural societies.
- Community organisations/centres and social services organisations.
- Consultants with expertise, and professional colleagues from the culture in question.
- Various culture-related listservs, and the internet.
Conclusion
Clearly, there is much to be learned. Delivering a dispute resolution process that serves the needs of a multi-cultural, global business community and improves the quality of that process for the participants means developing cross-cultural competency skills that incorporate cultural sensitivity and cultivate awareness of the cultural differences that will undoubtedly emerge. This is a skill set worth having in everyone’s toolkit.
