In developing his concept of mediators' orientations, Professor Leonard Riskin (the Harris H. Agnew Visiting Professor of Dispute Resolution, Pritzker School of Law, Northwestern University) established the facilitative-evaluative continuum that now forms a common basis for critiquing mediators' style, and seemingly endless discussion. Riskin later acknowledged that many practitioners used his tool as if dealing with a dichotomy. This was simply verisimilitude, as approaches to mediation never fall entirely on one side of a fence: it is a spectrum and approaches vary.
Cultural disparities between parties to a mediation add another layer of complexity, meaning that when a mediator finds himself - or herself - facilitating between parties from opposite ends of the globe, a different approach, perhaps outside the facilitative-evaluative paradigm, is required. It is worth noting here, however, that cross-cultural dispute resolution is most frequently practised in international arbitration. Mediation is gaining acceptance, and as it does so, sensitivity to the cultural idiosyncrasies of parties is likely to be an increasing concern.
At present, the field is largely defined by academics, as outlined below.
Cross-cultural conflicts in negotiation styles: low-context communicators vs. high-context communicators
Considered by many to be the founder of the cross-cultural communication field, anthropologist Edward T. Hall pioneered the idea that the meaning of a given communication can be discerned from the surrounding context compared to the words that are actually spoken. Thus, in low-context cultures, people communicate directly and explicitly, relying on spoken words as opposed to non-verbal communication to express themselves. In high-context cultures, the opposite is true: the meaning of the communication lies mainly in the context.
Understanding these differences is perhaps the most important cultural difference in cross-cultural mediation. Israeli Professor Raymond Cohen describes low-context communication, which is typical of almost all Anglo cultures as such:
"It is infused with the can-do, problem-solving spirit, assumes a process of give-and-take, and is strongly influenced by Anglo-Saxon legal habits… Goals are defined in terms of material, not psychic, satisfactions."
Cohen then contrasts this with high-context, relative to most Asian countries:
"An alternative model, associated with a non-verbal, implicit, high-context style of communication, predominates in interdependent societies that display a collectivist, rather than individualist, ethos… In contrast to the result-orientated American model it… is preoccupied with considerations of symbolism, status and face; and draws highly on developed communication strategies for evading communication."
When parties from high/low jurisdictions meet across the table in a mediation, these competing paradigms can create conflict. The theory suggests that an American party might be perplexed by his counterparty's apparent preoccupation with hierarchy, history, or an obsession with principle rather than nitty-gritty contractual details.
Conversely, a non-Western party may take issue with the other side’s intense focus on the immediate problem behind the mediation, instead of the overall relationship – or, similarly, a proclivity for confrontation and a corresponding indifference to establishing a broad moral basis for agreement.
The confrontational approach often associated with American parties is something that, to a lesser extent, is present in how US mediators practise. Termed "evaluatively directive" mediation, this style places emphasis on the mediator evaluating the parties’ position and then pushing them, often assertively, into adopting said evaluation.
Critics suggest that such an approach dilutes the principle of party self-determination and is inherently interventionist: there is less emphasis on the mediator reconceptualising the main issues and seeking a win/win for both parties. Likewise, this approach perhaps places the mediation on a more adversarial slant.
National legal context is key. When civil law jurisdictions are juxtaposed with common, systemic differences between the two provide an explanation for why mediation practices (and historical development) differ so.
In the aftermath of the Nazis' incredibly destructive reformulation of Volksgemeinschaft, the authors of the post-WW2 German Basic Law (Grundgesetz) were determined not to allow a reoccurrence of the national-socialist regime. Consequently, this new Basic Law incorporated social justice and democratic values that seemingly oblige the state to go further than merely providing a legal framework – mediation – within which citizens can settle disputes.
Under Grundgesetz, the German state is obliged to define what is right, what is wrong and what is just. As such, in Germany, and sometimes in other civil law jurisdictions, the state’s rigid approach to dispute resolution influences the mediator’s role. Said role does not follow an interest-based model, but is rather more directive in nature with particular weight being given to established legal rights: like in Germany, as derived from the Grundgesetz.
Contrastingly, a "good" mediator in the UK will guide parties towards a settlement that is normally not concerned at all with the enforcement of legal rights that derive from values clearly identifiable in constitutional text. Such is the perceived malleability of common law.
The Middle East
In many Arabic cultures, the role of the mediator is advanced from how it is generally viewed in the West – even allowing for the stylistic variances described in the above – into something more akin to a quasi-adjudicatory position. Often a resolution is imposed on the parties, and mediators are regularly imbued with a great deal of power. George Irani, of the American University of Kuwait, noted of Lebanese culture that:
"… as in Arab culture in general, the mediator is perceived as someone having all the answers and solutions. He therefore has a great deal of power and responsibility. As one participant put it: 'If [the third party] does not provide the answers, he or she is not really respected or considered to be legitimate'."
To try to understand how this approach differs principally from that of Western ones, one should look at how parties typically respond to mediators' evaluations in Western jurisdictions: the mediator provides his or her input and the parties are free to reject the recommendations, with little ultimate consequence. Contrariwise, in the Arab context, parties expect to be steered towards the ‘right’ solution, and, correspondingly, are receptive to adopting it.
Tying all these analyses together is difficult, and fraught with the risk of stereotyping, according to identity. It has to be recognised that cultural approaches to dispute resolution vary widely across the globe, so in order to develop a good mediation strategy, it is advisable to pick a mediator who is not only culturally sensitive to the societal attitudes of the dispute, but also understands what style of mediation works for the given country. Theory may suggest that an English mediator's approach would likely be wholly unsuitable to a commercial dispute in Saudi Arabia, but here theory and practice depart: self-aware mediators, as well as parties, can overcome their cultural baggage.