Replies to This Discussion

Permalink Reply by Crystal Schweitzer on October 24, 2011 at 9:20pm

To kick off the Tuesday discussions, we would like to focus on cross-cultural communication in transactional disputes. Let's get things started with the following two questions:

Is there a cultural element to transactional disputes?

Does ODR hide culture?  If so, to what extent, and how might this be a good or bad thing?

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Permalink Reply by Robert E Wronski, Jr. on October 25, 2011 at 11:36am

When I lived in South Korea (back in 1995 to 1998, so things may have changed since), I found that in any type of business dispute I came across with local merchants, they would just agree with me (verbally), even if they didn't agree with me truly, and had not actual intention of giving me what I wanted.  My wife (then) informed me that that is what they call "face".  Any type of conflict to them is very embarrassing within their culture and it's not their style to argue the way we Americans tend to do.

 

It was interesting because at first it was quite frustrating for someone to agree with my complaint but then not give me what I was asking for.  I had to reteach myself how to deal with these types of situations by learning to understand the environment and culture I was in.

 

The problem, from the merchant's side, would be in an online setting, if he says yes, he's now legally bound to that.  In his culture, yes wouldn't mean yes, and both parties are aware of that.  But in an online setting, yes definitely means yes, but due to his goal of saving face, he is likely to cave in and give whatever is asked.

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Permalink Reply by Adam Tunning on October 25, 2011 at 11:44am

Great forum topic. ODR benefits are in constant conflict with the advantages of face to face interaction. Cultural disparities can clearly compound what is lost in an exclusively online dispute resolution.

While negatives exist, one of ODR's benefits is reduced exposure. For instance, every president has an embarrassing story relating to their own cultural ignorance. Spending 4-8 years in weekly conferences with people from all over the world makes these errors inevitable. Even the most culturally intelligent individual cannot be perfect. In a transactional dispute, where the parties are often times more adversarial than a presidential meet and greet, these errors can escalate conflict and reduce the possibility of a positive resolution.

ODR presents practitioners with the opportunity to eliminate cultural variables that, if not handled correctly, might add unnecessary complications. Even simple things like dress, greetings, gifts, etc, can change the dynamics of a negotiation. Too many, this is a chance to show off your cultural awareness. Too others, it is a potential disaster. While traditional dispute resolution can be leveraged in one's favor, ODR presents a low risk alternative.

Lawyers are meticulous. From the law to the facts, they thrive on preparation. Cultural understanding, however, cannot be achieved in an afternoon on Westlaw. Since online communication does not vary as widely as traditional means, negotiators stand a better chance of avoiding mistakes.

Here’s a question. Is the online world developing its own culture where traditional cultural awareness may be largely irrelevant?

 

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Permalink Reply by Robert E Wronski, Jr. on October 25, 2011 at 12:14pm

Adam, that's a great question. I certainly see a new online culture emerging with it's own norms and values that cross borders, thanks to e-mail, social networks, blogs, ect.

And I've seen some of the online culture and language start making it's way into the offline world.

Perhaps we will some day live in a world where cultures merge, as sine sci fi depicts.  If this is true, society will become more and more adaptive to odr as it does with any new technology.

Adam Tunning said:

Great forum topic. ODR benefits are in constant conflict with the advantages of face to face interaction. Cultural disparities can clearly compound what is lost in an exclusively online dispute resolution.

While negatives exist, one of ODR's benefits is reduced exposure. For instance, every president has an embarrassing story relating to their own cultural ignorance. Spending 4-8 years in weekly conferences with people from all over the world makes these errors inevitable. Even the most culturally intelligent individual cannot be perfect. In a transactional dispute, where the parties are often times more adversarial than a presidential meet and greet, these errors can escalate conflict and reduce the possibility of a positive resolution.

ODR presents practitioners with the opportunity to eliminate cultural variables that, if not handled correctly, might add unnecessary complications. Even simple things like dress, greetings, gifts, etc, can change the dynamics of a negotiation. Too many, this is a chance to show off your cultural awareness. Too others, it is a potential disaster. While traditional dispute resolution can be leveraged in one's favor, ODR presents a low risk alternative.

Lawyers are meticulous. From the law to the facts, they thrive on preparation. Cultural understanding, however, cannot be achieved in an afternoon on Westlaw. Since online communication does not vary as widely as traditional means, negotiators stand a better chance of avoiding mistakes.

Here’s a question. Is the online world developing its own culture where traditional cultural awareness may be largely irrelevant?

 

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Permalink Reply by Fatima Khan on October 25, 2011 at 11:59am

Great topic!  I agree with Adam.  There are just too many cultural variables that can complicate matters in traditional court systems.  ODR creates a way to bypass those complications by getting to the point of the issues and resolution of the dispute.  

 

That said, since ODR hides culture to an extent, it might not be best for cases that have a cultural misunderstanding that needs to be brought to the forefront to understand the dispute.  It can be difficult to resolve a dispute that just had facts and issues laid out in an online format if the issue resolved around "saving face" as mentioned by Robert.  The facts would indicate one thing, while an expert in the culture might not be available to explain the significance of what actually happened.  Therefore, when parties engage in ODR, both the parties and the arbitrator should try to be aware of cultural issues, which is definitely possible.

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Permalink Reply by Chuck Wilbrand on October 25, 2011 at 1:06pm

To answer the first question, yes there is a cultural element to transactional disputes.  I do think that ODR hides some cultural elements but not all of them.  In certain aspects that is a good thing.  Take for example, as Adam pointed out, how someone dresses and greets others play a role in the dynamics of the negotiation.  Essentially ODR removes many of those variables because the negotiation is primarily text based.  Therefore it does not matter if one party of the negotiation has to wear burka, because the other party does know this fact and it becomes a non-issue.  However, ODR will not hide all cultural elements because certain cultures just negotiate differently and I do not think that would disappear just because it is in an online discussion instead of a face to face discussion.  The lawyer and negotiating parties will still need to be mindful of the other party's culture because if not the negotiation could still possibly fail.  ODR is still beneficial on many regards but the cultural element does not disappear.  

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Permalink Reply by Daniel Rainey on October 25, 2011 at 1:11pm

I disagree, at least to some degree, with the notion that ODR does not exist in as wide a variety of venues as traditional F2F dispute resolution.  I can think of no venue, from divorce mediation to peacebuilding, where ODR technology would not be able to play a role, either replacing or as an adjunct to F2F meetings.  Whenever we have created new communication channels we have learned to deal with meta-messages in those new channels,and I think we are rapidly doing so with the shift to the routine use of social media, most of which is currently in text format.  I have argued in other places, and still believe, that it makes a difference to which venue one is referring when talking about the impact of technology on intercultural interaction.  If you are talking about commercial dispute resolution across international borders and jurisdictional boundaries, then it probably has little impact.  After all, in that case, the buyer and seller have voluntarily chosen to "play" in the online commercial space and they have accepted a set of rules or norms that bind every player, regardless of micro-culture.  On the other hand, if I'm doing community mediation, where the issues are more local and where the micro-cultures travel into the dispute resolution space more easily, technology may have a significant impact.  And, I would argue, sometimes give the third party options that may actually enhance intercultural sensitivity.

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Permalink Reply by Crystal Schweitzer on October 25, 2011 at 6:51pm

Thanks for the thoughtful comments, guys.  We got together this AM to discuss your points in person, and a few of our thoughts are below:

 

Crystal: If you haven't already, check out the article attached to this thread -- it's about how Chinese and U.S. managers utilize different conflict management styles based on their underlying cultural values.  Chinese managers were more inclined to take on an avoidant strategy in conflict in order to preserve the personal relationship, while U.S. managers were more inclined to take on a competitive strategy due to their orientation to strive for achievement.  This ties in well with Robert’s illustration of South Korean merchants taking on another, unfamiliar conflict management style.  Very relevant to the direction this discussion is moving. 

 

Colin: I remember talking with an HR executive at a high tech firm that employed a lot of Asians.  She said that face-to-face conflict was considered very embarrassing, so the introduction of ODR was valuable because it provided a communication channel that didn't risk the embarrassment of public conflict.  Lots of issues came out over technology that were never raised in person.

 

Crystal: One thing this raises for me is the question of cultural imperialism.  Adam wrote, "Is the online world developing its own culture where traditional cultural awareness may be largely irrelevant?"  That's very interesting -- and the question I have is if creating and promoting this one global, online culture is a way of imposing new norms that may push out old norms?  Are we pushing the values of the dominant culture -- e.g., the most technologically advanced -- onto societies that are more recent adopters of technology?

 

Colin: We spent our whole lunch talking about this question of this emerging online culture and the risk of cultural imperialism.  I started out by thinking it wasn't cultural imperialism, but by the end, I came around to thinking that it might be, but unintentionally.  I actually think it's a step forward for humanity -- on eBay, for example, people don't know race, culture, language, gender, etc. of their transaction partners.  Maybe this is a way for us to get past some of those issues that have bedeviled humanity for generations.  But perhaps that's just me showing my own bias -- I just prefer the new online culture to the old one, but that may be the exact definition of cultural imperialism.

 

Crystal: The issues around discrimination are relevant in the systems design context as well.  When you think about the role of the "fourth party" there's not the same vulnerability to bias.  Technology isn't persuaded by someone's race or gender.  Algorithms aren't subconsciously swayed by such factors. 

 

Also, on Fatima's point, Yes, ODR does hide culture to a certain extent. But at the same time culture does not go away.  It's not as simple as saying people can't see it online, so it's not a factor.

 

Colin: But it's easy to over-emphasize culture online as well.  Maybe individuals who might have ascribed bias to certain responses in a face-to-face interaction will be more at ease online, because they know the other party doesn't have any information relevant to bias.  Perhaps people will be more forgiving of cultural mis-steps online because of that.

 

It also makes me think that humanity will need to learn "cultural multi-tasking" -- where individuals learn to navigate different cultures and switch between the value systems in real time.  For instance, at PayPal in India many of the employees live in very traditional communities where traditional cultural norms are still strong.  But each day they take a bus into the office where they work in a very modern environment, where more cosmopolitan norms are the default.  Those employees need to learn to succeed in both types of environments and switch back and forth seamlessly.  Maybe that kind of cross-cultural fluency will become the new normal, and help people to become more tolerant over time. 

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Permalink Reply by Bill Warters on October 25, 2011 at 6:56pm

Elements of culture that I'm not sure ODR deals well with include low context vs high context cultural differences and perhaps issues of hierarchy and who must be consulted to reach an agreement. It seems like a largely text driven environment would necessitate a shift toward low context norms where everything needs to be spelled out in specific detail. This would clash with cultures that assume everyone knows certain things and they need not be discussed.

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Permalink Reply by Daniel Rainey on October 25, 2011 at 7:02pm

On the other hand, in cultures where one decision maker "at the table" is not able to resolve an issue without consulting with and bringing along members of a family or community, the asynchronous nature of ODR could be a real advantage, allowing for communication among family/community before responding online.  As Colin notes, not being face to face is a real advantage in cultures where direct confrontation is uncomfortable.  We risk getting so attached to the contact theory driven frame of ADR in North America that we forget that conflict resolution unfolds in many other ways, some of which may be ideally suited to a slower, less confrontational, ODR format.

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Permalink Reply by Crystal Schweitzer on October 25, 2011 at 9:02pm

Bill, thanks for bringing up the topic of high context vs. low context cultures.  This is a perfect segway into a question that we were planning on opening up for discussion tomorrow, but seeing how you and Dan have both gotten the ball rolling on this discussion, I will post the question here a little early.  The question is:  How is ODR different for people of high context vs. low context cultures? 

You both have begun answering this question and have raised some really good points.  To continue with what Dan was saying, in what other ways can ODR be a positive thing for people of low context and high context cultures? 

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Permalink Reply by Jeff Aresty on October 25, 2011 at 9:46pm

The idea that ODR can offer benefits in high context or low context cultures needs to be looked at in varying ways depending upon the case study.

Take, for example, a multi-cultural team working in more than one country and using various technologies to communicate (Skype, e-mail, g-chat);  ODR in this case is a case of using technologies and keeping the team on track toward its specific purpose - spelling out the details of the work at hand, and, assuring that all the team members from whatever culture, is probably a good starting point.  Team trust building in an online context is really just supplementary to basic cross-cultural team building skills.  

The use of ODR in a cross-cultural divorce setting is going to be framed very differently - the divorcing spouses from different cultures have all ready experienced betrayal in their face to face environment.  Using ODR tools in a mediation context is going to have to take into account not only the cross-cultural differences between the spouses, but also their different understanding and use of communication technologies.

 

Age is also going to matter - younger generations are not going to experience the cultural differences in technology  as much as their parents are.  And, in many cases, because mobile phones are becoming the major access point to the "cloud" and the technologies that reside there, the younger generations are beginning to establish global norms for how to use the technology.  For example, it certainly looks like the Arab Spring gave birth to Occupy Wall Street - not the other way around.  In other words, the developing world's young people are showing people from all generations everywhere new ways to use social media to establish societal transformation.

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