Travel, Law and Life Considered

[This was a lecture given at the Golden Gate University (San Francisco) Law School in April 1998]

 

ADR for Transitional Americans: Mediation as the Preferred Method

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Copyright 1998- Keyvan Tabari.

The information contained in this article may not be published, broadcast, rewritten or otherwise distributed without the prior written authority of Keyvan Tabari.”

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This is a brief about the impact of culture on law.

I will present it to you and ask you to judge it. I propose you do that by asking me questions, challenging my assumptions and conclusions, and offering your comments and ideas.

In the Bay Ares, we live in a community where a material number of people are transitional  Americans. For the purpose of this brief,  transitional Americans are those who are not sufficiently socialized to interact with the legal system quite the same way as the system presumes for its subject. The rebutting of that presumption is the argument of this brief. As the operative consequence, I submit that because of their differences, for the transitional Americans mediation is the preferred method of ADR.

Now let us first more precisely identify transitional Americans. They are not necessarily the same as hyphenated Americans, ampersand Americans, ethnic Americans, or first generation Americans, although they could be any or all of the above.

They are, however, mostly those who were born abroad. This is a crucial fact. Not claiming any special knowledge of child psychology, I nevertheless believe that the early years form quite  a bit of one’s outlook. The later in life one migrates to the States, the more he or she brings their the cultural heritage of their land of birth. Transitional Americans also include those who, even if they are only children of foreign-born, happen to remain not-socialized, e.g., due to living in a cultural ghetto. There have been few of these in the past, but they could increase by trends favoring ethnic ghettos.

People come to this country from all of the world. Although according to the U.S. Census Bureau Latin America and Asia were the primary sources of newcomers in 1997, your own episodic observation would tell you that there are many more nationalities represented in the newcomers to the Bay Area. Specially, the nearly insatiable demand of the high tech industries in recent years has brought in a group from diverse lands who though not huge in sheer number, are significant because of their legal needs and impact.

But let us talk about numbers. In 1997, 9.6 percent of U.S. residents were born elsewhere. This is the highest percentage since 1930. The foreign-born peaked at 14.7 percent in 1910. [AP, April 9, 98, the Internet] I have not read any analysis of the impact of such a huge percentage of the population on the working of the American legal system in the early part of the century. But I venture the guess that is was not as great as the significant impact of the foreign-born today. For one thing, a century ago, the immigrants were almost all European. Secondly, their mobility and mobilization were much more limited. Thirdly, the legal system was not as sensitive to their needs. On the last point consider this: in those days legal documents were mostly prepared in long-hand. The pace of life was slow; change did not take place fast. By the time the legal system got around responding to the special needs of the transitional Americans they were dead. Their successors in such right to change had become socialized, melted in the pot. They did not need the change.

Now some more numbers. In San Francisco, according to the S.F. Chronicle’s data bank, 26.7% of the residents are foreign-born. We are not sure if that is the current statistics which could show even a higher percentage. But 26.7 is almost 3 times higher than the 9.6% national average. Ponder this figure: in nearly 60% of the simple two-party cases, you could potentially expect to have a foreign-born party. What does this mean?

First, remember that historically mediation became a preferred method of dispute resolution among the yet not-assimilated Jews and Chinese. To them the attraction of mediation was symptomatic of their rejection of an unfamiliar legal system, including its dominant method of resolving disputes by judicial means. The lumping together of such diverse communities as the Chinese and Jews is instructive in this conclusion. Despite internal differences we can make certain generalizations applicable to all transitional Americans regardless of their country of origin. This is for two reasons: not only to all of them the American legal system is unfamiliar; but also the cultural outlook, that is the attitude and behavior, toward law in the rest of the world is so different from that in the United States that in contradistinction we can treat all foreign-born the same way (as one) for much of this brief. Let me just give you a few examples. Nowhere in the world you have nearly as many lawyers per capita as in the United States. In international business negotiations the prominent role of the lawyer for the American side contrasts sharply with the subdued role of the lawyer for the non-American side, indeed sometimes he is not even brought to the negotiations at all! This I can tell you from first hand experience of nearly 23 years of practice. And, of course, the rest of the world is puzzled at the role that the judiciary is playing in what to them seems to be a political battle between the presidency and a congress controlled by a different party.

What are the common characteristics of the attraction of mediation, versus judicial resolution and arbitration, for the transitional Americans? Let me enumerate some candidates, not necessarily in the order of significance, based on my own experience.

1. The cost is less. Transitional Americans are far less likely to accept high legal costs than socialized Americans.

2. Mediation is possible without hiring an attorney. Transitional Americans are much more reluctant to hire an attorney. They are more likely to want to represent themselves, with their own arguments.

3. Mediation is the quickest way to resolve a dispute. Transitional Americans are less ready than the socialized Americans to accept the prolonged stress of litigation as a fact of life.

4. In more than 80% of cases mediation leads to a conclusive resolution of the dispute. This near certainty of the outcome appeals to the transitional Americans who are mostly unaccustomed to and uncomfortable with the unpredictability of the largely discretionary judge and jury decision-making, which is unlike a system familiar to them where laws are mostly statutory.

5. The terms of the resolution are not imposed by the mediator, but are the results of the agreement of the parties. This gives a valued sense of controlling the outcome that mitigates the anxiety the transitional Americans feel about an unfamiliar legal system

6. In case of failure of mediation, there still remains the right to arbitration and judicial resolution. This escape option allows the transitional American to approach mediation more relaxed. It is more valuable to them than for the socialized Americans, because, again, even mediation is a device of a system less familiar to them.

7. Knowledge of the law is not necessary for participation in mediation. This helps the transitional American to use the logic and means of persuasion he normally uses, which are usually less akin to American legal reasoning than are those of the socialized Americans.

8. Rules of evidence and procedure are not observed in mediation. These are areas almost arcane to the transitional Americans. The extra-legal context of the dispute is often more important to them than to the Americans who are socialized to compartmentalize the legal context. They are more likely to take a view broader that the law; they would want to deal with the underlying (sometimes long-standing) emotional aspects of the dispute.

9. Mediation is more familiar to them than the other methods of dispute resolution. Asking a third party to facilitate negotiations is both universal and ancient.

10. Mediation can be held at any place that parties choose. Not only does this provide for the desired convenience, but it also gives mediation the informality that makes it more accessible to the transitional Americans. The value of this element is reflected in the fact that a transitional American is more reluctant than a socialized American to meet his attorney in the latter’s office. He prefers his own office or home as the venue.

11. Mediation is possible in any shared language of the parties, which often might not be English. This is a major advantage over judicial resolution and arbitrations which must be conducted in English (at least, to allow the observance of the rules of evidence). Mediation in another language, however, requires that the mediator also speak that language.

            This requirement creates a problem, but it also points out a significant qualification for mediators in cases involving transitional Americans.

            The problem is that the pool of otherwise qualified mediators will be limited if being versed in a language other than English is requirement. On the other hand, even if all the transitional American parties are well versed in English, the pool of otherwise qualified mediators is limited by another requirement: the mediator must have sensitivity and awareness of the impact that the different outlook of the transitional Americans has on the process of mediation. Let us explore this more.

            Consider the fact that mediation is essentially really facilitated negotiations between the parties. My experience is that international negotiations are more complex than domestic negotiations, because in them parties manifest dissimilar expectations rooted in different cultural values. Let me give you some examples from a recent article I posted on the Internet.

            “In negotiating an [agreement] an American would ordinarily be more interested in limiting his exposure, while his foreign counterpart may focus on enlarging the scope of his authority; the American would aim at direct expression of his goals, while his counterpart may prefer circumspection; the American would seek pragmatic solutions to the problems, while his counterpart may insist on logical consistency; and the American would want clarity in the projected plans [for settlement], while his counterpart may desire the flexibility of nuanced vagueness . These objectives, observed in dealing with different nationalities, may not be incompatible, but their synthesis requires understanding and finesse [by, inter alia, for our purpose, the mediator].

In crafting an international agreement (including a mediated settlement agreement), even the basic task of communication could be difficult. In order for the parties to express their intent unmistakably, a shared language is essential. English may well have become the (global) lingua franca, but often it is not the native tongue of one or more of the parties to the negotiations. In such circumstances, the same word could have different connotations for various parties, allowing for potentially conflicting interpretations. The awkward language sometimes found in international agreements and conventions is symptomatic of this problem and the unsatisfactory attempts to deal with it.

 

Nonverbal communications are equally important in international negotiations. They, too, are rooted in the diverse cultural backgrounds of the parties. What is an innocuous pause for one party in response to a proposal during the negotiations could appear portentous to another, and thus adversely affect the negotiations. The choice of the negotiators, the scheduling of the negotiations sessions, and the social events arranged in connection with the negotiations (lunch?) all could deliver messages with unintended significance.

Disparate cultures also produce distinct styles of negotiations. Some emphasize bargaining for every part of the settlement agreement, while others aim at long-term relationships. Some require decision-making by consensus, while in other cultures one person makes the significant decisions. What might be acceptable practice in some cultures, may appear unethical in other cultures. All of these differences must be fully taken into account for the international negotiations to reach fruition.”

            You have probably read about the few studies undertaken about mediation across cultures in the United States, including the one by the University of New Mexico Schools of Law and Sociology. A noteworthy conclusion in the latter study is that, at least in the context of civil disputes where the amount in controversy is less than $5,000, the otherwise apparent disparity in mediated outcome for white disputants compared with disputants of color (the latter receiving fifteen percent less if claimant, and paying eighteen percent more if respondent), disappeared when the case was meditated by two co-mediators of color.

            To some “[t]his strongly suggests that the ethnicity of the mediators… has a powerful impact on the outcome of the mediation…. We don’t know what causes this… that is, whether mediator actions and attitudes, disputant actions and attitudes, or both, are causing these results, [but] we do know that there is a problem which cannot be dismissed by saying that a good mediator can mediate anything.” [Bennet & Hermann, The Art of Mediation, pp. 115-116]

            Having said that, there are ways for any mediator to become better at serving a transitional American disputant. His or her competence is bound to improve by training in awareness, attitude, and behavior. Here are some suggestions for the mediators, offered by an observer, in which I concur:

    “. Be self conscious of your tendencies toward stereotyping and labeling                       

            . Recognize the limits of your own ability to understand someone from a different cultural background 

            . Anticipate different expectations from participants than you would have                       

            . Don’t assume that what you say is being understood or that you understand what is being said

            . Assume that differences within a given culture are profound, perhaps as great as differences between cultures

            . Seek information about the way people in different cultures view the problems or the situation 

            . Take the time to learn about people as indviduals

            . Test and validate your hypotheses and assumptions that relate to culture. [Id. p.117]

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This article titled ‘ADR (Alternative Dispute Resolution) for Transitional American is a lecture given at the Golden Gate University (San Francisco) Law School in April 1998.