January 19, 2011

Keep Your International Arbitration out of the Tower of Babel

By: Dr. Ken Broda-Bahm –

Old Globe

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So, a retired Brazilian judge, two American litigators, and three German engineers walk into a bar…  Okay, so it wasn't a bar, it was an international arbitration, but the potential for miscommunication is just as great as the joke intro would imply.  This one took place in Sao Paulo, Brazil and it was preceded by a two-day mock arbitration that I facilitated in order to help our litigation team prepare the best arbitration case possible.  Any case that makes it to arbitration or trial faces its fair share of hurdles.  The need to teach, to leverage the best law, to overcome case weaknesses, to maximize strengths, and to wrap it all up in a convincing message, all adds up to a pretty tall order.  But, add to that the barriers of language and cultural difference, and the tall order becomes venti. 

As legal disputes inevitably become more international in nature, arbitration emerges as one of the more critical ways to solve disputes that transcend borders.  As international arbitration increases, however, we can expect an increase in the challenges in just getting the message across.  In appreciating these challenges, consider a few things. 

1.  For American litigators, there are many familiar signposts.  And it isn't just the good luck that a sizable part of the world has increasingly decided to use English and the new lingua franca (and that is very good luck).  Beyond that, the process itself has become more complex, with broader discovery, extensive briefing, and broader reliance on expert witnesses.  As one recent analysis suggests, "arbitration of international commercial disputes has taken on many of the characteristics of litigation in U.S. courts" (Seidenberg, 2010).  Of course, the increasing complexity and formalization, and resulting time and expense of alternative dispute resolution (that is, mediation is the new arbitration…and arbitration is the new trial), is one of the reasons that some companies are turning back to the courts.  But in international settings, a domestic court isn't always practical or satisfactory for all parties.  The rest of the world grumbles about arbitration being Americanized (after all, why should we just leave it at language, culture, and economics?), but American litigators, at least, can take comfort in the presence of more mechanisms which are designed to encourage a more deliberate and more rational result.

2.  For all parties, communication is central. The simple possibility of miscommunication when communicating with anyone, let alone when communicating across cultures, is obvious.  At the same time, we may not appreciate the degree to which it matters.  An interesting discussion in the field of the behavioral science of the brain, for example, focuses on the possibility that much of what we believe to be observed differences in thinking styles across cultures are actually failures in communication (Shweder, 2010).  In other words, what researchers see as a different worldview, may simply be a similarity that has been lost in translation.  And, if those communication errors can fool serious academic researchers, they can potentially stump arbitrators and witnesses as well.  In preparing your message in international arbitration, you need to pass it through multiple filters:  one for law, one for persuasiveness, and one for the way it will come across to the ears of every important listener.

3.  Preparation is still the ticket to success.  With parties, witnesses and attorneys scattered across the globe, it may be a little more daunting to bring the team together in order to prepare.  At the same time, the stakes are often high in international arbitration, and all we have is this leaky bucket of communication being passed between languages and cultures.  In that setting, the more time spent preparing and testing the message, the better.  Getting back to the introductory scenario, what did we do in Sao Paulo to conduct a mock trial to prepare the entire message, including testimony, before a panel of mock arbitrators?  Working with a fantastic market research company in Sao Paulo ("Demanda" – the name, like its English counterpart, has a meaning in both marketing and law), we provided the briefing, embedded with questions, to all of the arbitrators in advance so we would know the trouble spots.  Then we provided opening statements from the American litigators, witness testimony from the German engineers, questioning by the Brazilian arbitrators, and closing arguments, all specifically tailored to address those problems.  In the end, we revealed to the mock arbitrators who we were working with, and enlisted their aid in helping us improve our case.  Ultimately, there is no doubt that some arguments and finer points were lost in translation, but that just helped us to fix what we could – generally it meant simplifying and teaching, at least as much as arguing.

The problems faced in international arbitration are just a more extreme case of the more common issues we face when litigating in a diverse society.  Non-native witnesses, in particular, can be a challenge.  We know that jurors and other fact-finders can have a strong reaction to an accent, a gesture, or a mode of speech, and even small differences can be important.  Whenever your communication is bridging a cultural divide, the best advice is to know it, test it, and account for it in your litigation message.

ResearchBlogging.org

Shweder RA (2010). Donald Campbell's doubt: cultural difference or failure of communication? The Behavioral and brain sciences, 33(2-3), 109-10 PMID: 20546655

Photo Credit:  ToastyKen (Kenneth Lu) Flickr Creative Commons

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