As we all know, there is quite a bit of subtlety involved in every negotiation. While each party is outwardly stating her perspective or views,  each is also communicating a lot by what is not being said, or by what is being implied. Sometimes, these subtle communications get lost because the listener hears the question differently than what the questioner intended,  due to translation issues or obscured by cultural differences.

I conducted such a mediation recently. Plaintiff was born in the mid-east and now lives in the United States.   Before taking a trip to her native land, she purchased travel insurance to cover “emergency” medical care. While on her trip, she suffered  what she believed to be a medical  “emergency” injury  and so made a claim with the travel insurer.  Notably, prior to departing for her trip, she had spoken with a representative of the insurer and asked how did it define “emergency”.  The representative stated in effect, ” you are in pain, you go to the doctor and you get treated!”

The travel insurer denied the claim because according to the doctor who treated her in her native land, the injury was not an “emergency” which was required for coverage under the policy

The Plaintiff sued the insurer for breach of contract and for insurance bad faith. During the mediation, the Plaintiff was absolutely adamant that the claim should have been paid, that she was right and that she would win at trial. She was quite emotional and would not listen to any comments to the contrary.

As a last resort, I asked her if she would agree to talk to the insurer’s representative in a joint session. Up until then, I had been conducting separate sessions. She agreed.

The joint session was illuminating as the representative explained in detail why the claim had been denied, providing much information of which the plaintiff was not aware. It seems that part of the reason was a translation issue. The insurer had sent an investigator to investigate the claim in her native land and in the investigator’s report to the insurer something definitely got lost in translation. More specifically, when the investigator asked the treating physician whether the injury was an “emergency”, the doctor took it to mean whether it was simply “life threatening”   (i.e., a matter of life and death) and not also whether it “… could cause serious and irreparable harm if not treated.”  Plaintiff contended that her injury was one that “could cause serious and irreparable harm if not treated” and so should have been covered. She stated that she had been in excruciating pain and could barely move, and if not treated, would have definitely gotten worse.  The insurer, relying on its investigator’s  report did not realize that this important definition got lost in the  translation from English into plaintiff’s native language and then back again.  All the insurer knew was that her treating physician said it had not been an “emergency” – whatever that word means- and based on that denied the claim.

The other subtle issue here was the cultural difference. As explained in a June 2014 article (“ Launch more productive cross-cultural negotiations” at pages 10-16) published by the Program on Negotiation, Harvard Law School, the world can be categorized into three different cultures: “dignity”, “face” and “honor”. ( Overcoming_Cultural_Barriers_in_Negotiation ) The United States, Canada and Northern Europe are typical of a “dignity” culture as their residents value independence and free will and not relying on others.  They “…strive to manage conflict rationally and directly while avoiding strong emotional reactions…” (Id.)  They also tend to trust others and prefer a collaborative approach to negotiation. (Id.)

“Face cultures” are found mostly in East Asia, including China and Japan, and “… encourage people to save face and preserve harmony by avoiding direct confrontation, suppressing negative emotions, and deferring to authority.” (Id.) Their residents typically do not trust others and so tend to negotiate indirectly. Interestingly, these residents tend both to express and to actually experience fewer negative emotions such as anger, sadness or stress. (Id.)

Finally is the “honor” culture which is found among residents of the mid-east (i.e., the plaintiff), North Africa, Latin America and parts of Southern Europe. These residents tend to present a strong defense of themselves, and their families, relying on a code of honor and close family ties. They “… tend to view insults and other conflicts as direct challenges to their status and to respond boldly and even aggressively to slights.”  (Id.)  They tend to not trust the opposing negotiator fearing that they will be betrayed in the end.   As one may suspect, these residents also frequently experience strong emotions such as anger and thus, are easily distracted from the cognitive aspects of negotiation due to their “emotional need to protect their honor…” (Id). Thus, the article notes, it is important to spend time working on the relationship and building trust.

Looking back on this mediation, I now see these cultural differences. The insurer’s representative was a U. S. citizen and thus from a “dignity” culture believing strongly in our effective system of law and attempting to use a “collaborative” approach to the negotiation.

The plaintiff, in no uncertain terms, made it clear that her honor was being attacked and viewed the denial of her claim as a direct challenge to her. She was definitely very emotional throughout the negotiation, preventing her cognitive abilities to be of use. Consequently, the joint session helped the insurer to work on its relationship with the plaintiff and to build enough trust that the matter would be settled. (Which did occur!)

So… beware that due to cultural differences and language differences, what you say may NOT necessarily be what the other party hears!

…. Something to think about.




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