Embracing Diversity Part 5: Negotiating with Diversity

Paul Sills

Barrister and mediator Paul Sills provides a guide to negotiating with diversity in the final part of his 5 Part series on embracing diversity. Follow more of his series here.


Diversity is often considered in terms of cultural, religious and racial diversity.  For the purposes of this article, the term cultural diversity encompasses all of these areas.

When there is cultural diversity between parties in negotiation, focus on the cultural practices of the individuals concerned rather than the culture as a whole when considering if, how, and to what extent cultural differences are in play during negotiations. Otherwise, we may stereotype participants based on our judgments of their culture as a whole. The ideal is to learn about the different culture, understand it, then make informed non-judgmental decisions based on the actual situation in front of you.

It is also important to test your understanding of the culture. Do not make any assumptions. Communication is vital when dealing with cultural diversity. The parties and the mediator must always clarify the objectives of the parties from a cultural perspective. A mediator may be assisted by engaging someone from within the culture that he or she is unfamiliar with. This person could be a co‑mediator taking an active role in the mediation, or a a cultural advisor that keeps the mediator on track without  participating in the process directly.


  1. Focus on the culture or the individual?

We can give too much weight to cultural factors. Individual differences can be just as significant  as cultural differences. The dangers of focussing solely on cultural differences include treating people as cultural ambassadors rather than unique, multi-faceted human beings. Important information can be lost as a result.

While background research on culture is important, gettng to know the participants as individuals, including their profession, work experience, education, areas of expertise, personality and negotiating experience is vital. The culture of each of us as individuals is multi-layered: individual, group, work, regional or city and national.


  1. Reduce stress and take your time

Reduce stress when negotiating cultural issues or issues of diversity.  Emotional stress, deadlines and accountability to others from within your culture can cause particpants to lock‑in with cultural expectations rather than carefully analysing the situation in front of them. Take breaks, extend deadlines or asking neutral third parties to help resolve differences.


  1. Avoid stereotypes

When making judgment calls, we rely on schemas: cognitive templates that provide low‑effort, ready‑made answers. Cultural schemas account for the distinctive behavioural biases exhibited by negotiators from a different culture.

While research confirms cultural sterotypes, it is a mistake to assume that group tendencies reliably predict any one individual’s behaviour.  Cultural differences in negotiation don’t hinge on, for example, where the parties were born, but they depend on what the negotiator actually does at the negotiation table. The ability to engage in constructive communication – by revealing and interpreting information – matters more than where someone is born.

Cultural differences between groups are often quite small. However, we tend to overuse the stereotypes that arise from even small differences, which blocks us from noting each participant’s important individual information. We act as if the person on the other side of the table represents the cultural stereotype we were expecting, rather than responding to the actual person that is there. We involuntarily seek information that backs up these stereotypes.


  1. Observe don’t judge

We tend to interpret the behaviour of others, their values and  beliefs, through the lens of our own culture, conditioning and judgment. To overcome this tendency, we need to learn about the other party’s culture.  This means not only researching the customs and behaviours of different cultures but also understanding why people follow the customs and exhibit these behaviours in the first place.

Before any negotiation, take time to study the context of the person on the other side of the table, including the various cultures to which she belongs: individual,organisational, ethnic or national culture.


  1. Adopt an outsider’s lens

There is often a paradox in negotiations where we are typically unaware of our own biases yet at the same time we can accurately pinpoint the biases that influence the decision‑making of others. This has been described as making decisions using two different lenses: the insider lens and the outsider lens. The outsider lens is used when we are removed or detached from a particular situation.


A strategy for mediating disputes involving diversity

How do you effectively mediate disputes that do not fit within the logic of an interest‑based dispute?  That is, disputes involving challenges to identity, values or morality – the issues that can arise in situations of diversity.

Try this four step process:

  1. Separate interests and values: Separate a values‑based or identity‑based dispute into a more traditional interest‑based segment and then help the parties deal with that portion of the dispute in a more traditional way. Once that is done, it might be possible for the parties to then take on the values‑based issues.
  1. Be direct: Facilitate dialogue and encourage opportunities for deeper mutual understanding and relationship building. Don’t aim to resolve the dispute. Instead, focus on helping the parties understand and respect the views of each other and, most of all, help them to avoid demonization. Create a different climate in which a traditional settlement may be possible at a later time.
  1. Universal values: Reframe these disputes by appealing to values that the parties might both share, rather than focusing on the conflicts between them. By referencing universal values (for example, equal rights, freedom from violence etc) the parties may find common ground. Recognising common values can open lines of communication, build trust and otherwise improve relations. They can also become springboards to finding ways of living and working together more effectively.
  1. Be curious: Have the parties confront their differences in a controlled fashion and help them explore and ask questions about each other’s values with the goal of possibly altering their beliefs, stereotypes and prejudices.

Some thoughts on the above process are:

  • Mediation can be used to alter relationships while not directly resolving the underlying value dispute;
  • Reframing a dispute in terms of shared values is a form of resolution, although it requires a restatement of the problem the parties want to solve;
  • Mediators are not therapists, but it does take a kind of therapeutic engagement to help parties confront others with diametrically opposed and deeply‑held values and beliefs;

It is often correct to assume that people engaged in value or identity‑based disputes will not agree to compromise, but other forms of accommodation and reconciliation are still possible.  More thought needs to be given to the logic and benefits of reconciliation.

The outcomes of the above process may not look like a traditional settlement. That does not mean they lack validity or are unworthy of study and understanding.

While diversity may present barriers to reaching an agreement in negotiations, differences can also be opportunities to create valuable agreements. Take for example cross‑cultural negotiations. These are particularly ripe with opportunities to capitalise on different preferences, priorities, beliefs, and values.

Paul Sills is a barrister with over 20 years’ experience working in global litigation markets. Paul is also an accomplished business leader, having been involved in a diverse range of companies (as CEO or director) including the marine industry, global health care and international freight. Paul has been engaged in mediations both as a legal advisor and as a client since 1995 and as a mediator since 2010. These have included multi-parties and complex issues surrounding Treaty of Waitangi settlements, aviation disasters, leaky homes, construction and receiverships. With a unique understanding of the challenges businesses and individuals face and drawing on his years of commercial and legal experience, Paul provides timely and cost-effective solutions for his clients. Paul’s appointments include Associate Member of AMINZ, a member of the panel of mediators for the Marine Industry Association, Triathlon NZ Age Group Adjudicator for 2015 and 2016 and a member of the panel of mediators for the New Zealand Law Society. Paul is approved to assist with the Society’s Early Resolution Service, as well as standard track mediations. As a barrister Paul maintains both an active commercial litigation practice and a comprehensive mediation practice. Contact Paul at paul.sills@paulsills.co.nz or connect via Twitter Twitter or LinkedIn LinkedIn

For more information visit Paul’s website https://paulsills.co.nz/