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John C. Trimble
It is Time for Negotiators and Mediators to be More Savvy About Cultural Differences
Among the Parties
By John C. Trimble
It is highly likely that the vast majority of FDCC members have represented international clients in litigation in the US. It is a certainty that every one of
us has defended a case in which one or more Plaintiffs were international. Further, with the diversification of our society, every community has immigrant populations who are assimilating into the community and who may eventually end up in litigation.
The majority of our members are lawyers who were born, raised, and educated in the US. That means that our views of the judicial system, our knowledge of our culture, and our experience with negotiation have all been shaped by our US upbringing. While we may think that we can know how persons from other countries or cultures may think, the reality is that unless we train ourselves, our assumptions about the decision making of international clients and opponents may be flawed.
For the last 35 years I have been a defense lawyer and a part time mediator. (“Part time” means roughly one-third of my practice.) During those years I have been involved with hundreds of negotiations involving international parties. What I have learned is that many, many international parties do not trust our system, and despite a friendly relationship with their lawyers, they do not fully trust us. Because of their lack of trust, they may not be as forthcoming as they should be in responding to discovery, and they may be less likely to accept and act upon their lawyer’s advice. In negotiations they are frequently unwilling to give their lawyers the insight about settlement authority that good negotiators like to know as they craft a strategy to settle.
My pitch to you today, whether you are exclusively a defense lawyer or a mediator and defense lawyer, is to educate yourself about cultural views toward litigation and negotiation. And, I have a starting point for you. There is a magnificent book entitled, “Kiss, Bow, or Shake Hands: The Bestselling Guide to Doing Business in More Than 60 Countries.” Kiss, Bow, or Shake Hands . For many years I have sworn by this book. Any time that I have a negotiation with
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Alternative Dispute Resolution
FDCC ANNUAL INSIGHTS 2023