Written by Nicolas Tang & Cheryl Tan
Mediation has become an increasingly popular form of dispute resolution, both in the East and West. The most prevalent approach towards mediation is facilitative mediation. Commonly known as the interest-based model, facilitative mediation recognises that each demand by a party is motivated by an underlying need or concern. Hence, the model focuses on identifying the needs and concerns of each party.¹ Once they have been elucidated, the approach seeks to find alternative means to satisfy these demands. As its name suggests, the mediator’s role is to facilitate the process by uncovering their interests. The mediator is therefore a neutral party, and the parties in dispute are the ones who have greater power over how the mediation goes.
However, it has been noted that the interest-based model is primarily based on Western ideals and cultures. It is not always compatible with the values prioritized by Asians. Therefore, mediators may find it beneficial to adopt elements of another model of mediation –– evaluative mediation. In evaluative mediation, the mediator provides guidance as to the appropriate way forward based on their expertise and experience.² It involves mediators discussing the merits and weaknesses of each parties’ claims. Thus, unlike facilitative mediation, evaluative mediation requires the mediator to play a more active role in the dispute, and parties give more control to the mediator during each session.
It is apposite to first delve into the cultural differences between Asians and Westerners, as well as how these differences can affect the approach taken by mediators. In this aspect, the theories of Dutch social psychologist, Geert Hofstede, are helpful. While he points out a multitude of nuanced cultural differences between different societies, there are three key differences that significantly impact the way disputes are handled in Asia and the West³ :
Collectivism describes how closely linked individuals perceive themselves to be in relation to their societal groups.4 People living in individualistic societies tend to believe that ties between individuals are loose, and everyone is expected to look after themselves. Hence, individual rights often take precedence over group interests. This is predominantly found in Western societies. Conversely, Asian societies are more collectivistic. Collectivists believe that we find ties in larger in-groups, such as extended families or a neighbourhood. Hence, they place more emphasis on the general interests of the communities that they are a part of. Simply put, individualists often think from the perspective of ‘I’, while collectivists try to think from that of ‘we’.
Power distance is described as the extent to which less powerful members of organisations accept and expect that power is distributed unequally.5 Societies can be classified into two groups– small power distance societies and large power distance societies. In the former, individuals believe that power must be legitimate, and are less likely to fully accept power inequality. The latter societies believe that power inequalities are inherent in society, and may not openly question the legitimacy of such power differences.
Western societies are generally thought to be small power distance societies. Because of their individualistic inclinations, Western societies value autonomy and the individual’s expectations. They recognize the presence of hierarchies, but do not place as much value on respecting the individual’s status in the hierarchy as much as their Asian counterparts. On the other hand, Asians live in large power distance societies. They place more emphasis on respecting the existing hierarchy and power imbalances found in society.6
The different power distances also impact the way each culture views the preservation of relationships. While it is undisputable that individuals from both cultures value personal relationships, the emphasis they place on relationship preservation during dispute resolutions can be vastly different. Westerners may find it more productive to be upfront and confrontational during disputes, as they perceive this as a direct way of resolving any grievances and conflicts. However, Asians may have their reservations when asked to do the same. Their focus on “guanxi (关系)”, which is directly translated to “relationships”, prompts them to take a subtler approach when communicating with the adverse party.7 It has been noted that “guanxi” is not merely the relationship shared between individuals, but also includes connotations of self-identity, social-identity and social-connectedness between individuals and groups.8 Hence, generally, the need to respect “guanxi” in the Asian context make conflicts less confrontational and aggressive.
The cultural differences between Asians and Westerners are interconnected, and each factor cannot be viewed in isolation of the others. Having a preliminary understanding of how these cultural differences interact can help mediators to see how it affects mediations.
In facilitative mediation, a mediator supports and facilitates the mediation process. This sits well with Western ideals, because the facilitative model focuses on individuality. Parties have ownership over the way they settle their dispute, and are expected to be given control over how the mediation plays out. Mediators are therefore expected to be non-assertive and neutral.
However, this does not always prevail in the Asian context. Due to their collectivist inclination, Asians are willing to maintain a commitment to a group even when their obligations to the group are personally disadvantageous. Moreover, the large power distance in their societies results in their inclination to look up to an authoritative figure. They may prefer to have a figure to guide them through the mediation by taking more initiative in the dispute resolution process.9 Hence, they may not benefit from mediations that take a party-centric approach, that is, to give parties the autonomy to take charge of the dispute resolution process. To push parties to take charge of the process may cause them to be frustrated, and be counterproductive.
Instead, mediators may be required to be at the center of the mediation process. In return, Asian parties respect the guidance given by the mediator and this can lead to more effective processes and better outcomes.
On a related note, this approach may remind some mediators of evaluative mediation. The approach has been criticized for disrupting the fundamentals of mediation, as the mediator is traditionally expected to be neutral and give authority to the parties in dispute to settle.10 However, commentators have preferred to use some features of evaluative mediation to suit the needs of the parties. This is important to give effect to the cultural differences between the Asians and Westerners. Mediators may therefore choose to alter the conventional facilitative approach to better suit the needs of Asian parties. For instance, commentators have recommended mediators to consider giving an assessment of the situation and alternatives at a later stage of the mediation process.11 This helps mediators to guide the parties using their expertise, while preventing them from prematurely judging a situation without giving the parties the opportunity to express their concerns.
Facilitative mediation often encourages open confrontation. This is ideal in the Western context. The need to respect individualism often means that mediations are informal, and parties can feel free to be direct about their concerns and feelings. Parties can therefore tolerate a high level of friction, and this is sometimes deemed necessary in the dispute resolution process.
The same cannot be said for the Asian context. Asians’ collectivist inclinations often make them more conflict-averse. The need to preserve ‘mianzi (面子)’, or ‘face’, makes respect and proper conduct very important in the dispute resolution process. In such cases, the use of direct, confrontational language may be inappropriate as it causes the other party to “lose face”12. To tailor the mediation process, mediators may pay more attention to non-verbal cues given by the parties. Importantly, mediators should note that the interpretation of non-verbal cues differ based on the context. Hence, mediators may try to infer parties’ intentions from a particular culture’s norms and practices.13
In closing, the choice of the mediator is extremely important when parties hope to settle a dispute. A mismatch of mediator style and a difference in cultural understandings can lead to the inability of reaching a successful outcome. Some parties may benefit greatly from an evaluative mediator who can offer guidance on the strength and weaknesses of the case. However, parties such as General Counsels may refer facilitative mediation, since they do not require evaluations from their mediator. Ultimately, the choice of mediator and mediation venue all depends on one’s preferences and needs, and one should be cognisant of the different mediation styles so that they can benefit greatly from mediation.
1 Joel Lee, Teh Hwee Hwee, An Asian Perspective on Mediation, (Academy Publishing 2009), at p. 25
2 Epoch Mediation “Evaluative and Facilitative Mediation”, (accessed 31 May 2022)
3 Geert Hofstede, “Dimensionalizing Cultures: The Hofstede Model in Context” (2011) Online Readings in Psychology and Culture at p. 11
4 Joel Lee, Teh Hwee Hwee, at p. 58
5Hofstede at p. 9
6Joel Lee, Teh Hwee Hwee, at p. 67
7Joel Lee, Teh Hwee Hwee at p. 68
8 Joel Lee, Teh Hwee Hwee at p. 173
9 Joel Lee, Teh Hwee Hwee, at p. 67
10 Dorcas Quek, “Primary Dispute Resolution Centre, Facilitative vs Evaluative Mediation – Is there Necessarily a Dichotomy?” (Law Gazette, 2012) (accessed 1 June 2022).
11 Dorcas Quek “Primary Dispute Resolution Centre, Facilitative vs Evaluative Mediation – Is there Necessarily a Dichotomy?”
12 Joel Lee, Teh Hwee Hwee, at p. 167
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