vate session, the contractor told to me that he was hurt as,
because of the sub-contractor’s error, he (the contractor)now
had a compromised relationship with his client.
At the end of the mediation, the subcontractor and the contractor agreed that the contractor would pay an amount much
smaller than that for which the sub-contractor was originally
suing. Again, although I (as a solo mediator) did not directly ask
either party why he was settling, my experience of and conversations (both joint and individual) with the parties led me
to believe that ultimately, their relationship was compromised
because of their lack of communication. This is what led to the
dispute that arose. And while the option on which they ultimately agreed was, in the view of both parties, less than ideal, it
was better than returning to court (their BATMA) and arguing the
merits of their respective claims to a magistrate.
HIGH CONTEXT/LOW CONTEXT COMMUNICATION
Accounting for the parties’ relationship, type and level of communication and BATMA becomes even more important when
they are from different linguistic and cultural backgrounds.
The Low Context/High Context continuum, created by anthropologist Edward T. Hall, captures one aspect of this obstacle.
Generally speaking, people from low-context cultures tend
to convey information in explicit verbal or written messages;
people from high-context cultures, tend to convey information through means that go beyond verbal or written cues, for
example, through body language and qualities of the relationship between the parties. There are, of course, other elements
that come into play when determining type and level of communication, but the basic continuum looks like this:
This is not to say that the High Context/Low Context distinction is not also important if the parties are from the same
cultural/linguistic background: in a situation such as that
between the contractor and sub-contractor, one question to
ask is whether low-context (explicit) communication methods
were used in a situation requiring higher context (
non-writ-ten or non-verbal) methods. For example, in the situation
described above, the contractor asserted that the subcontractor, when removing extra material from the job site, removed
other material that was important to the owners. Nothing that I
heard from either party indicated to me that the sub-contractor
ever understood that importance. For me, the point, regardless
of who did or did not communicate properly, is that effective
communication did not take place, relationships suffered for it,
and the current situation might have been avoided if their communications had been more contextualized.
When the parties are from different cultural/linguistic back-
grounds, the High Context/Low Context distinction is crucial.
As an illustration, a Brazilian attorney who also practiced in the
United States explained to me her understanding of why Bra-
zilians, and perhaps those from similar cultural backgrounds,
spend so much time building a relationship, and the trust that
comes with that relationship, before entering into a more busi-
nesslike transaction: in Brazil, if one party to a contract violates
that contract, it can be an extremely difficult process for the
aggrieved party to obtain a favorable judgment, and even more
difficult to enforce that judgment. Consequently, it is better to
create, from the outset, as trusting a relationship as possible, so
as to be confident of not having to litigate the issue in the future.
My experience assisting with intercultural negotiations has
shown me the importance of being aware of the relationship,
communication level and type, and my personal BATNA (in this
case, Best Alternative to a Negotiated Agreement). I recently
helped arrange an event for a small organization that had an
entirely Brazilian staff. I began the project before the director
and I had signed a contract. About 3 weeks after beginning
work, and after a lot of discussion about my role and appropriate compensation, we came to an agreement and arranged a
time to meet at the organization’s office to sign the contract.
But on the day of the meeting, the time had to be pushed back.
I was not sure if we were even going to meet that day and I had
to consider what I would do if we could not sign the contract at
all. It was not until I had resolved that my BATNA was an acceptable alternative and was on my way out of the city that I got a
text message from the director that she was back at her office
and prepared to sign the contract. At that point, although I had
determined that my BATNA was acceptable , I decided that
being part of the project was a much better alternative and that
whatever challenges the process might present, they were
worth the value that they would provide to my existing relationships and the opportunity to begin forming new, long-term
Today’s increasingly diverse social and professional environment requires that mediators be particularly aware of parties’
relationship, level and type of communication, and respective
BATMAs. For the purpose of resolving disputes, mediators must
be able to integrate this awareness, along with awareness that
different parties (particularly those from diverse cultural and
linguistic backgrounds) form relationship and communicate in
different ways. Practices based on this successful integration will
make it much more likely that the mediator will be able guide the
parties toward a satisfactory outcome.