In an era of increasing demand for settlement of disputes through non-judicial mechanism, many methods have gained importance. Negotiation is one of them. Negotiation is becoming progressively fruitful for resolving contractual, family as well as various other kinds of disputes. The disputes are of various types, so are the types of negotiations. Cross-cultural negotiations has emerged as a branch of the mechanism. This specifically deals with resolving disputes that have cultural issues in businesses or between two or more people. However, there have been many loopholes in the same.
The article captures the mechanism of cross-cultural negotiation and issues related to it, as also, the remedies that can be opted for the same. Emphasis has been given to introduction of cross-cultural negotiation in India and benefits that emerge through employment of the same. This as a whole critically examines the process and suggests solutions to it.
Over the recent years, Alternate Dispute Resolution (ADR) has acquired significance in several countries. It is now considered a procedure that allows the parties to come into a mutual agreement. This also gets concluded in a shorter period than litigation. There have been various instances where ADR has been opposed by various litigants and practitioners. This is due to numerous historical reasons and consistency of practice of litigation. There are several methods for resolving disputes through ADR. Arbitration stands as a widely adopted mechanism of ADR. Other such mechanisms are Mediation, Conciliation, Negotiation, and also Lok Adalat, majorly practiced in India.
From the aforementioned mechanisms, negotiation is preferred for settling various kinds of disputes. Negotiation has been derived from the Latin word “negotiatus” which means “to carry on business”. This involves a process of self-counselling where parties try to reach a favourable conclusion. No interference of a third person is required as the parties here act as self-suffice counsellors for themselves. This process is simpler than other ADR processes. The process gets fuelled up advancements in the technological field too. This is providing ease for carrying on ADR processes in difficult times too.
What is cross-cultural negotiation?
Culture, acts as an abbreviation for almost every aspect of human behaviour. It indicates the way a person lives, practices religions, follows rituals, thinks, way of his work, and other life-related activities. It influences the habits of people and their surroundings. It is connected to almost everything mainly, religion, language, food habits, etc. It is vital for making a person different from another being.
Along with culture, comes the need for resolving the disputes that arise in cross-cultural practice. If negotiation is adopted for resolving such disputes, the process is collectively known as “cross-cultural negotiation”. These are the negotiations that take place between people of different nations or cultures. Like, the disputes between Anglo Indians and Native Indians. Both of them have their own beliefs and practices. If it comes to resolving a dispute, both will have their ideologies. Therefore, cross-cultural negotiations may be slightly complicated than the other ones.
As globalization is taking over, and the world continues to grow closer into a global village, cultural issues have the potential of being resolved with common mindsets. As a result, there is an increasing importance of cross-cultural negotiations in resolving political as well as business disputes. The process of cross-cultural negotiation involves the identification of priorities and interests of parties, developing strategies, tracking the pattern of interaction that should take place between parties. Essentially, culture acts as the main negotiator in the process. Cross-cultural negotiation is adapting different processes according to the need and nature of disputes. for Example, adapting pre-discussions as an important part, introducing regulations to be followed while negotiating, etc.
Issues Underlying Cross-Cultural Negotiation
As the people involved in cross-cultural negotiation have different beliefs and etiquettes, it gives rise to various issues. The main underlying issues in cross-cultural negotiations are related to individuality in parties and their lifestyles. To elaborate upon this, some of the issues are discussed. Firstly, the issue is related to protocols. People coming from different backgrounds follow different protocols which makes it difficult for the parties to understand each other’s views. It also creates confusion in understanding the etiquettes.
Secondly, the issues related to non-verbal communication. As non-verbal communication is significant and that varies from culture to culture. A negotiation between Japanese and Indian nationals will make it difficult for them to understand each other’s body language. there might be an instance where a party would keep silent in order to respect the other party’s opinion. however, the same may be communicated as disrespect and lack of attentiveness to the other Body language is gets affected by surroundings and culture. Another issue is the difference in the law giving rise to the common legal issues in any situation. Different cultures might have different legalities to be followed. This makes it difficult for the party to follow the laws of another party, thereby increasing the complexity of the process of dispute resolution.
These issues arise primarily because of the difference in the values that parties follow owing to the difference in cultures. The values override the need for neutrality sometimes. This makes it difficult to reach a reasonable or mutually amicable solution. These issues will make it difficult for the parties to opt for cross-cultural negotiation. In turn, this will increase the burden of courts and parties will have to get into a lengthy and complex judicial process.
Yet another concern is the social and cultural challenge that people are facing. Such issues are suppressing the golden points, among others. Due to the minor issues, that have turned into major ones with time, the practice of cross-cultural negotiation has not gained much importance and is not as widespread as other means of ADR.
Remedies to underlying Intercultural Issues
Before we begin practicing, it necessary to look after the critics and be prepared for facing and finding solutions for them. As there have been many loopholes in the practice of cross-cultural negotiations, remedies need to be considered by each party. The issues that arise in cross-cultural negotiations can be remedied in several ways. The first and foremost is to consider the situation from the perspective of the other party by one party and not through their own mindset. In cross-cultural negotiations, this can be achieved by engaging cultural experts to act as facilitators. This will help remove and smoothen the gap between the cultures of both parties.
Building a strong negotiation dynamic is the key to success. Never letting a party be misled by your questions. Queries of each party must be addressed in a proper manner. Negotiation dynamics refer to the skill of building the discussion in such a way, both the parties get the stances of other ones unquestionably. In other words, in cross-cultural negotiation, the discussions can be framed from knowing each other’s culture to building a common solution favouring both cultures.
The intent of negotiations must be to try and arrive at a solution and carry a long-term goal. While having cross-cultural negotiations, the goals must be set by both parties in a manner that builds strong relations which are long lasting. The parties must build cognitive trust for each other. This will help parties to reach more fruitful conclusions.
Taking note of historical aspects of the cultures to which the parties are related, is also of significance. This comes under the perspective of preparations. This will help the parties to understand the viewpoint of each other clearly. For example, it cannot be assumed that all Indians have the same culture. In a cross-cultural negotiation between an Indian entity, if the counter party is not aware of the same it may lead to unnecessary and unfavourable arguments. Therefore, knowing the culture of the party specifically plays a vital role.
Introduction of cross-cultural negotiation in India
Negotiation is not being practiced in India like in several other countries. There may be several reasons for it. Firstly, the large cultural variations in the country demand cross-cultural negotiations. Therefore, there rises a need for having cross-cultural negotiation in India construing to a different set of rules. Looking after the major aspects, cultures play a vital role to shape relationships in India. To safeguard these relations, cross-cultural negotiations need to be introduced. While negotiating over a matter, parties do tend to save their cultural relationships too. For covering both, business and cultural relations, intercultural negotiation is the need of the hour.
The goal in Indian culture is to focus on long-term relations and contracts. While negotiating, it is important to focus on long-term goals too. therefore, when the issue4s will be resolved through negotiation, it will be helpful in attaining a mutual point. this will serve the motive of both parties. unlike the judicial process, where parties tend to file appeals and the issue gets resolved through a lengthy process.
There are various instances where a single topic has to be discussed again due to doubts. When it comes to courts, the topics once closed are difficult to be picked up without the permission of the court. Due to this, some of the issues remain intact leading to difficulties that arise later. While practicing cross-cultural negotiations, parties while having a choice of discussing the important topics related to their culture, more than once. This will again help in setting the long-term goal.
In the above-mentioned manner, cross-cultural negotiation in the country will play a vital role. It will help parties to move from lengthy procedures to satisfactory discussions. India, being home to various cultures, can employ this mechanism and establish the same as a model for the rest to follow. This will act as a saviour for parties in the country as well as for parties having disputes with parties from other countries.
Various benefits of cross-cultural negotiations have been mentioned. However, apart from that it also tends to foster teamwork in a better way. This will help to reach better conclusions through agreements. All such steps will lead to a better quality of teamwork and understanding. While considering cases of individuals, cross-cultural negotiation might come out as a step for saving family relations as well as businesses. This process will give equal importance to cultures as well as disputes. Negotiators will make sure that parties do not hold cultural grudges and solution is long-lasting.
Cross-cultural negotiation will also hold importance for settling various kinds of disputes in India. The process can be introduced by setting up an institution so that people become familiar with this mechanism. The after-effects of the process will come to be positive and will also consume less time. India needs such processes to lessen the burden of courts too. Cross-cultural negotiation will act as a pathway to a simplified, culturally friendly dispute resolution mechanism in a culturally diverse country, India.
Preferred Citation: Diddi, Shivank; Makkad, Sejal “Cross-Cultural Negotiations: Issues and Remedies vis-à-vis Introduction in India”, The Law Culture (2021)
Mr. Shivank Diddi is an advocate and a Senior Associate at Khaitan & Co.
He is working in the legal industry, striving to develop a career as an international lawyer. Skilled in Legal Affairs, Legal Research, Analytical Skills, Interpersonal Skills, Arbitration, Litigation, and Legal Document Preparation. Strong professional with a Master of Laws – LL.M. focused in International Commercial Law from UCL.
Sejal is a student of Amity Law School, Amity University Chhattisgarh, pursuing BA LLB(H)