Our Australian law firm is often engaged throughout Australia to assist parties to a mediation or to facilitate mediation between parties where people involved are of Asian descent or Chinese speaking. This article is focused on Chinese speaking and Chinese background litigants from South-East Asia and Greater China (Mainland China, Hong Kong, Macau and Taiwan) and covers a broad ranges of practice areas including civil litigation, family law and commercial disputes. There are a lot of nuances both culturally and linguistically which we set out below:
Language barriers
There are a lot of translation and interpretation issues which can occur when the parties are not fluent in English to the level of being able to understand and use legal terms appropriately. Although an accredited interpreter or translator may be engaged, nevertheless there can be almost a doubling of the mediation time, costs and also a lot of mistakes that might occur especially where the interpreter and/or translator are not from the same home town with a nuanced understanding of regional slang and use of words. Technology through translation software helps but often misses important points due to the different styling and grammar of English and Asian languages such as Chinese mandarin. Therefore, it is important to address these concerns through litigants instructing lawyers earlier and preparing the case at a much earlier date to the mediation to allow for the engagement of appropriate lawyers, interpreters and/or translators who are very familiar with the case. It does help if the lawyer and/or mediator also understands the same language as the litigants but this will be based on the English fluency and cultural values of the parties to the case.
Cultural barriers
Certain cultural values of Asian and Chinese background clients can create their own nuances in dealing with settlement discussions. Many disputes involve property and commercial contracts which have minimal supporting written documentation e.g. trusts, joint ventures, investments and business partnerships etc. In addition, there are a lot of people usually involved in a dispute including the parties’ spouse, parents and relatives. Through studying family therapy, drawing the family system of a litigant can help explain the Confucian hierarchical relationship for how decisions are made in a settlement, which can allow lawyers and mediators to understand who needs to be involved at a mediation. Where disputes involve family members and wealthy individuals, there is often greater importance placed on harmony and face saving to protect someone’s standing in the community. In our experience as a long established law firm within the Chinese community in Australia, the standing of the mediator or lawyer within the Chinese community and their relationship with their litigants and other lawyers involved in a dispute will have a greater impact of settling the matter. In addition, the mediator often needs to be known and respected by both parties for the matter to reach settlement and an understanding of the culture of the litigants is important to create buy-in to the mediation process.
Preference for shuttle mediation
Direct communication in situations where face saving and emotional control may be of issue leads to a preference for shuttle mediation where the parties to a dispute should have limited interactions with each other. In addition, cases may involve one party engaging 3-4 lawyers, a senior partner and junior associate from the solicitor firm and a barrister, as well as a professional interpreter. The parties’ may also have relatives who are the key decision makers in the family to appear at the mediation, particularly where they have provided money to the litigant for their legal fees and/or the property being disputed over. A delicate balance must be had with having too many people in the room who can bog down the settlement process, but care must be had for a lawyer acting purely as an informal interpreter to save costs. The lawyer representing litigants should take charge in ensuring their client provides full disclosure, drive the problem solving so as to create a clear understanding of the options available for settlement and limit the likelihood of renegotiations that are often prevalent amongst Asian litigants.
Home country pre-conceived ideas
For many Asian litigants, there can often be misunderstandings of law and legal systems as their lived experience in another jurisdiction outside Australia may have them misunderstand the rules of evidence, discovery, role of the Government in enforcing judgements and the potential remedies available. For the Australian accredited mediator, it is often our role to create settlement outcomes which are suitable for the parties’ situation that would otherwise be unachievable if a judgement was handed down by judges. For example, having an understanding of Civil law systems like Mainland China and Vietnam would mean that settlements may be generated which might not occur with a purely common law based perspective. A need for specifically tailored Asian and/or Chinese style mediation is often required which may involve multiple rounds of mediation to facilitate settlement.
Why choose Chua Tan Associates mediators and lawyers?
Our firm has a strong history in representing the Asian community in Australia, particularly with a focus on the Chinese speaking communities of Greater China and South-East Asia. Our approach to dispute resolution is well-regarded and is relied upon by many individuals of the Chinese community to reach quick and confidential legal settlements. We have an extensive network of lawyers throughout Australia and overseas and we would be more than happy to have a confidential discussion about your client’s case and how we may assist you. With a strong knowledge of Australian law and Asian cultural practices spanning more than three decades, the core of many disputes can be understood efficiently, which saves litigants much time and costs.
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