International legal negotiation is becoming increasingly prevalent. As globalisation expands indefinitely, disputes continuously transcend international borders. Domestic legal negotiation can often prove to be difficult as it is. The additional challenge of international legal negotiation is not to be understated. With this is in mind, one crucial element to international legal negotiation is an appreciation from the negotiators of the cultural differences faced at the negotiating table. One relatively undisputed fact of negotiation, any negotiation in fact, is that an understanding of those you are negotiating with and vice-versa, will certainly extend your chances of reaching desirable outcomes for both parties, or in turn, reaching outcomes at all. For international disputes, an understanding of the opposing parties’ culture is important.
What is culture?
Before delving into a variety of the cultures faced on an international scale, it is important to establish what a culture actually is. In layman’s terms, culture is a group of people that share a similar set of beliefs, traditions or perspectives. Whilst not ingrained into flexible modern societies, cultural traditions can be used as a tool for distinguishing different groups of people. Societies may be becoming increasingly multicultural, adding another layer of complexity to a broader notion of cultures in international legal negotiation. However, without stereotyping, different approaches and traditions can be found across various cultures, influencing the practice of negotiation. It is important not to understate the danger of stereotyping on the topic of negotiation. An appreciation for cultural traditions and norms is key, however, whilst cultural definitions tend to apply to a large proportion of societies and populations, there are typically individuals or groups that break from said cultural norms. Regarding international legal negotiation, a focus on the individuals must not be forgotten in replace of cultural understanding. Instead, the two compliment each other. An understanding of both will aid negotiators during international disputes.
Whilst certainly multicultural demographically, there are several key elements to British culture that can help international legal negotiation. The UK is known for its etiquette, formality and politeness. An appreciation of all three certainly assists in negotiation. However, there are perhaps some more niche aspects to British culture that really come to fruition during negotiation. One of these is directness. Unlike the United States, in the UK not everything said is meant as such. Understatement and irony are typical in the UK. It is easy to be fooled by British statement, as taking it for meaning one thing, when in fact it implies another. For example, saying something as simple as ‘that’s interesting’ could imply a lack of responsiveness to the point, or a genuine interest. It is often hard to tell. This is where a focus on the individual really strengthens the negotiation. Tone and gestures are key to this. Tone in the United Kingdom is often low or subtle, and a change in such can be telling in a negotiation.
The United States is quite different regarding international legal negotiation, but perhaps less complex. One key element intwined in US culture is the role of negotiators. Negotiators are typically given authority to make decisions on the spot. In contrast, in hierarchical cultures negotiators are less conclusive at the time of negotiating, as they act as information gatherers for their superiors.
One other aspect of US culture is accountability. Agreements must be specific so there is accountability, leaving each side to be held accountable for what they do or don’t do. In other countries, more emphasis is placed on trust, expecting the other side to adhere to agreements made.
Pragmatism in the US is also key. The willingness to avoid time and expense can somewhat dictate negotiation. Straightforward dialogues are preferred within American culture. In America, the phrase ‘time is money’ is commonplace. This applies to legal negotiation and conducting it honestly and openly.
In stark contrast to the US, Japanese culture is very different in how it influences legal negotiation. In Japan, individuals may not have the same authority to make decisions, and often act as information gatherers for their superiors. This means that negotiation may take more time.
Another aspect to Japanese culture, not dissimilar to British negotiation, is that of politeness. The Japanese are arguably more concerned with being polite than most nations. This affects legal negotiation, as one might struggle to hear the word ‘no’. This in turn leads to another similarity between British and Japanese culture: the meaning of words. In Japan, ‘yes’ might simply be an expression of understanding as to what someone says, as suppose to an agreement to the point made. This perhaps leads back to an appreciation for individuals, as well as culture, when partaking in international legal negotiation. With the Japanese, be prepared to negotiate with teams of people, as collectivisation remains a crucial element of Japanese culture.
China is another country in which an approval process often leads to lengthier negotiations. Agreements often take more time for a variety of reasons. Patience is therefore key. Often, the Chinese want time to trust the opposition, and also find consensus in agreement. Great emphasis is placed on building trust in Chinese negotiation, and it is not to be understated.
Furthermore, like Japan and unlike Western cultures, much emphasis is placed on collectiveness. China is a hierarchical culture, emphasising a utilitarian approach. Emphasis is placed on the collective over the individual. This leads to lengthier negotiation, as less authority is given to individuals.
One final aspect to Chinese culture, to be taken into account during legal negotiation, is an appreciation for tradition. Chinese culture is entrenched in tradition, and some research or understanding of these traditions helps to ease the cultural barriers faced.
Italy provides an insight into another deeply traditional culture. It is certainly one of the most traditional within the West. Whilst Italy could be considered complex, as the culture within differs from the north to the south, there are some values that reign prevalent throughout the country. Firstly, perception is important to negotiation with Italians. More notably than other nations, well-dressed, presentable individuals are better regarded in Italy. A formidable appearance often translates to reliability within Italian circles. Reliability is crucial to Italians. A culture entwined in familial tradition and relationships, trust is an important aspect to negotiating. Indeed, this can lengthen the negotiating process, as Italians require time to develop this familiarity. The Italian legal system is less flexible than its European counterparts, and the traditions Italians abide by are important to recognise during negotiation.
During international legal negotiation, Brazilians illustrate a different cultural perspective to those already mentioned. Often, negotiation with Brazilians might appear informal. Brazilian culture promotes personability and friendliness, and this extends to the negotiating table, creating non-hostile atmospheres.
However, other Brazilian values are also crucial to consider during negotiation. Ethics, honesty and trustworthiness are key components of Brazilian society. Brazilians also place great emphasis upon transparency and punctuality. Adopting these values certainly strengthens a legal negotiator’s standing and position when negotiating with Brazilians.
There are several key components to Russian culture that extend to legal negotiations. Russians may have a perception as difficult to negotiate with, however, adopting some key principles valued in Russian culture can alleviate some of these concerns. Firstly, Russian culture, similarly to Brazilian culture, emphasises punctuality. Moreover, in complete contrast to British culture, vagueness is not a strong element within Russian culture. Russians are often more straightforward, practical and analytic. Trust is important in negotiation, especially within Russian culture. Deviating from a straightforward and practical approach can easily damage this trust, hindering the negotiating process. Therefore, whilst in Britain and Japan ‘yes’ might not mean so, in legal negotiations with Russians, it is preferable that ‘yes’, when used, does in fact mean so.
One final point regarding the effect of Russian culture on legal negotiation, is a sense of firmness within the negotiation. Russians may threaten to leave the room or abandon the negotiation. These tactics are often strategic, as Russian culture concerns itself with losing less than the other side. Holding firm to your positions can be key to succeeding in negotiating.
India is another hierarchical culture, which often leads to lengthier negotiations. Patience again, is emphasised during negotiation. Decision-making is typically done at the top, and so like the other Asian countries discussed, negotiations can take more time before approved decisions are made. Indian culture also strongly promotes community values. When it comes to legal negotiation, emphasis is again placed on trust and personal relationships. Respect for your counterparts helps build this trust, and whilst it can take time, it is culturally significant in India, and in turn will ease potential tension within the legal negotiation.
Having provided an insight into several different cultures and their impact upon international legal negotiation, some key notions prevail. Crucially, understanding of your counterpart’s culture will aid legal negotiation, and this entails greater understanding than simply the history of the nation one might be dealing with. Aside from obvious language barriers within international negotiation, which do present challenges in themselves, different nations adopt different approaches to customs, strategy and practice. Trust is key to most negotiation. On an international scale, adopting or understanding different cultures helps to build this trust, to aid the negotiation as a whole.
About the authors
Paul Marmor is the head of the Litigation and Dispute Resolution Department and the International Services Desk at Sherrards Solicitors LLP. Maximilian Marmor is a paralegal in the Litigation team, also at www.sherrards.com
This article has been written by Paul Marmor and Maximilian Marmor of Sherrards Solicitors LLP, but does not reflect the views of the firm.