August 6, 2004
By Dr. Alessandra Lippucci, Senior Lecturer in Government, University of Texas At Austin
Globalization—like it or not—is accelerating, and with it the incidence of international conflict. Disputes inevitably arise as increasing numbers of individuals, businesses and institutions attempt to operate across boundaries. Because litigation—the traditional means of resolving these international disputes—is costly, time-consuming and stressful, the parties have an incentive to turn to alternative dispute resolution (ADR), which tends to be cheaper, more efficient and less stressful.
To meet the growing need for ADR internationally, lawyers, judges and other professionals from the United States and Mexico met in San Miguel on July 23-25 at the Warren Hardy School to establish the International Institute for Responsible Conflict Resolution. The institute will develop new and more efficient methods and protocols for resolving international conflicts in the Western Hemisphere and will train its members to serve as international ADR consultants, consejeros intermediarios, and third-party neutrals in mediations, arbitrations and other conflict resolution processes developed by the institute.
The institute is the brainchild of Judge Frank Evans, founder of the Frank Evans Center for Conflict Resolution at the South Texas College of Law in Houston, Texas. In collaboration with Warren Hardy, Judge Evans organized this bi-national conference to lay the foundations of the institute. This was no traditional conference. Guest speakers and participants interactively brainstormed in meetings and coffee breaks to identify their institutional values and conceptual goals as well as the practical problems that the institute’s members will likely confront.
Following Judge Evans’ opening remarks, participants turned to a central theme of the conference: the importance of cultural sensitivity and its role in mediating disputes in the Western Hemisphere. To facilitate the resolution of a dispute between a Mexican and a Canadian company, for example, the mediator or consejero intermediario, must be an effective cultural translator—that is, he or she must be familiar with the legal rules of both countries as well as how to navigate among the cultural values that unite and divide all mediation participants.
Warren Hardy, long recognized as an expert cultural translator between Mexicans and North Americans, explained the etiquette and ethics that foreigners must master if they expect to relate effectively to business people and others in Mexico. According to Hardy, people on both sides of the border have developed similar values over the course of their respective histories—for example, those related to time, trust, honor and family—but they weigh them differently due to the vast differences in those histories. In Mexico, for example, social protocol, or cortesía, warms up the public space and creates the context of civility that is the precondition for effective communication in business or any other relationship. Hardy offered a host of tips on social protocol, such as how to request time, show respect and express thanks, and how to enter and leave a Mexican’s personal space. Hardy concluded by saying that both North Americans and Latin Americans agree that the biggest problems they face in doing international business are the need to find the right people to work with and the need to develop mutual trust
Christopher Finkelstein, who heads the city’s new office of international relations, then explained the current status of ADR in Mexico. According to Finkelstein, Mexicans are only just learning that mediation, conciliation and arbitration are far faster, cheaper and more civil ways of resolving disputes than going through the Mexican courts. He pointed out that the Guanajuato Center for Dispute Resolution handled 300 cases in its first year and had a one-third success rate. Currently mediation is not mandated by the courts, but such legislation is pending. Finkelstein said that Mexico still lacks adequate ADR institutions to handle disputes and has no equivalent of the American Arbitration Association. Currently the primary institution available for arbitration of business disputes is the Mexican Chamber of Commerce. There are NAFTA procedures for mediation, but Mexican small and medium businesses do not trust them. An additional problem is the fact that disputants who belong to two different legal systems (Mexicans rely on Roman law and those north of the border rely on common law) do not trust the other’s judicial system.
Lic. Santiago Gonzales Sanchez, the former assistant director of commercial and artisan development for the city, who is currently facilitating the export of local arts and crafts in the private sector, laid out the legal components of the FM2 and FM3 visas and the rules for creating a corporation in Mexico. He fielded dozens of questions in these and other areas. According to Gonzalez, the federal government and the Chamber of Commerce in Mexico are far better at protecting large rather than small businesses, so that the latter have a greater incentive to utilize ADR, or justicia alternativa.
Marleen Bergman, a consultant to major U.S. industries, further elaborated on the topic of cultural sensitivity by focusing on the cultural aspects of negotiation. She highlighted four universal distinctions that help explain the cultural differences that divide people who are trying to communicate across national boundaries. Some cultures value individualism more than collectivism; some deal very differently with uncertainty and distance; some allocate authority differently, depending on gender. From these distinctions Berman generated practical “dos” and “don’ts” to help individuals keep their cultural balance when operating on foreign terrain.
Dr. Janine Sagert, a consultant to Dell and other major U.S. companies, showed participants how to manage the stress they experience in difficult negotiating circumstances. According to Sagert, scientific research confirms that individuals who first undergo calming and centering exercises positively affect the physical and mental conditions of those around them. She advised mediators to use these techniques to reduce the level of conflict among disputants during the negotiating process.
The group plans to meet again next year.