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ADR Through A Cultural Lens: How Cultural Values Shape Our Disputing Processes[1]

In ADR Through A Cultural Lens, Julia Ann Gold, Director of the Mediation Clinic at the University of Washington School of Law, analyzes the ways in which cultural value patterns and communication styles influence a society's approach to conflict and its resolution. In turn, Gold argues that each of the most popular dispute resolution mechanisms utilized in the United States reflect dominant American cultural values and she offers advice to practitioners on how to adapt a dispute resolution process to complement the cultural values of the parties involved.

At the beginning of the article, the author provides a definitional framework clarifying the intended meanings of terms ubiquitous in academic and popular discourse. For the purposes of her analysis, Gold describes culture as "the psychological features that define groups of people," [2] and explains that there are values embodied by each culture that exert enormous influence on how an individual will behave in a particular situation. The importance of values in the context of dispute resolution cannot be overstated as they "'teach us what is useful, good, right, wrong, what to strive for, how to live our life, and even what to die for.': [3] While an individual may operate on numerous cultural levels in various aspects of her life, Gold asserts that within each national group a majority of people adhere to similar values and this leads to the creation of a dominant culture. Comparing the values exhibited by individuals and national groups, researchers have formulated cultural value patterns in order to explain observed similarities and differences. Gold identifies five cultural value patterns, as well as two communication styles, that are of particular importance in dispute resolution.

The first cultural value pattern the author discusses is individualism-collectivism, a description of "the relationship between the individual and society." [4] A collectivist society believes that the needs of the individual are subordinate to those of the larger group whereas in an individualist society, the identity of the individual dominates that of the group. The individualism-collectivism dynamic is reflected in the next value pattern, universalism-particularism. This dichotomy captures "how one balances obligations to one's ingroup with obligations to society at large." [5] An individualist society typically adopts a universalist approach to the application of rules meaning that everyone in society, regardless of their status, should be treated the same. Conversely, in a particularlist society, personal feelings dictate how rules are applied to an individual and those in the ingroup, like family members, are treated deferentially. Just as a society will differentiate between ingroups and outgroups, Gold explains in the section on power distance that there is a variance in how societies view those with power. In a society with a high power distance, individuals readily accept that power and its proxies are not evenly distributed. Like power distance, the fourth cultural value pattern, uncertainty avoidance, is measured on a high-low scale. In a society with low uncertainty avoidance, "conflict is viewed as potentially positive" while "[i]nitiative and flexibility are valued and structure is avoided." [6] On the other hand, individuals in a high uncertainty avoidance culture favor structure and predictability and conflict is frowned upon. Locus of control, the last cultural value pattern, is measured from internal to external. Those with an internal locus of control believe that their actions shape their future and that their circumstances can be changed through application of their own talents, whereas those with an external locus of control view their fate as at least partially predetermined.

In terms of communication styles that impact dispute resolution, Gold emphasizes low-high context communication and monochronic-polychronic orientation. The context of communication indicates "how much of the meaning of communication comes from the surrounding context, as opposed to actual words exchanged." [7] In a low context culture, what an individual says is the exclusive determination of the meaning of a communication, and in a high context culture (like many collectivist societies), a great deal of a communication's meaning is inferred from circumstances and gestures. Just as collectivist cultures tend to utilize high context communication, individuals in those societies usually have a polychronic perception of time, meaning that time is not rationed and can be expanded when needed. In contrast, individualist societies like the United States are monochronic and the popular view is that time is finite and must be used as productively as possible.

Gold argues that the dominant American culture is extremely individualist and also universalist, while exhibiting fairly low uncertainty avoidance, an internal locus of control, and a medium to low range power distance. American communication is primarily low context while the sense of time is monochronic.

Having laid the conceptual groundwork, in Section II of the article Gold discusses the cultural values that are reflected in litigation, arbitration, and mediation (community and court-annexed). According to the author, litigation exemplifies "the formal American system of justice." [8] Litigation, while not always the most rewarding option, remains the most common method for resolving disputes in the United States and Gold believes that this is because it "reflects certain key values consistent with dominant American culture." [9] Litigation represents American values of individualism and universalism, while also being conducted through low context communications reflecting a monochromatic sense of time. When individuals turn away from litigation to solve their disputes, Gold argues that this is due to the desire to achieve more voice and control in the resolution of their problem. Two methods of Alternative Dispute Resolution — arbitration and mediation — allow for more voice and control, and embody the cultural values of low power distance, internal locus of control, and low uncertainty avoidance more than litigation.

Comparing arbitration to litigation, Gold suggests that the two processes differ in that arbitration is more collectivist in nature as it can recognize a need to protect future relationships and that it also is more particularist as rules are typically determined by reference to a contract. Increasing use of arbitration has made it more formal and procedurally reminiscent of litigation, and Gold argues that this can be explained by the influence of two fundamental American cultural values: individualism and universalism. Also, as arbitration grows increasingly similar to litigation, attorneys come to control the process, resulting in the locus of control becoming more external.

Moving to mediation, the author differentiates between the community and court annexed mechanisms. In community mediation, the parties retain control over how their dispute will be resolved and broad approaches to problem solving are encouraged, permitting the parties to discuss issues that would not be heard in a court setting. Gold argues that community mediation will continue to be a real alternative to litigation and believes that it "appeals to the segment of American culture with more collectivist, particularist values, and to those for whom an internal locus of control trumps individualism." [10] In addition, community mediation is consistent with a low power distance and low uncertainty avoidance. Individuals control their destinies and there is no system susceptible to predictions. On the other hand, court-annexed mediation shares more similarities with litigation than does its community incarnation. The involved parties are typically represented by lawyers and the mediator often assumes a role that is more assertive and influential than would be seen in other forms of mediation. Most significantly, court-annexed mediation takes place "in the shadow of the law[,]" [11] meaning that legal rules and standards loom large in the background of the process. Consequently, court-annexed mediation is more individualistic and universalist than community mediation. Furthermore, court-annexed mediation involves a higher power distance and greater uncertainty avoidance than community mediation, while the locus of control is more external when the mediator takes an evaluative approach.

In her conclusion, Gold emphasizes that those responsible for designing and implementing dispute resolution mechanisms should be mindful that the predominant mechanisms in the U.S. have been developed within a framework reflective of American cultural values. Using two hypothetical community mediations, the first involving American and Nepalese parties and the second involving only Nepalese parties, the author provides guidance to practitioners on how to tailor a dispute resolution process to correspond with the cultural goals and values of the participants. Understanding the cultural values of parties to a dispute and adjusting the dispute resolution mechanism accordingly will undoubtedly increase the likelihood that the parties will embrace the process and arrive at a favorable resolution of their dispute. Given the increasing diversity of the U.S. population and the potential for disputes caused by global economic and technological interconnectedness, legal practitioners would be well-advised to consult the full text of ADR Through A Cultural Lens.

[1] The full citation for this article is: Julia Ann Gold, ADR Through A Cultural Lens: How Cultural Values Shape Our Disputing Processes, 2 J. Disp. Resol. 289 (2005).

[2] Id. at 292.

[3] Id. at 294 (citing Larry A. Samovar & Richard E. Porter, Communication Between Cultures 57 (5th ed. 2004)).

[4] Id. at 296.

[5] Id. at 297.

[6] Id. at 300.

[7] Id. at 298.

[8] Id. at 303.

[9] Id. at 304.

[10] Id. at 313.

[11] Id. at 315.