Strategies for Successfully Navigating Cultural Differences in Construction Negotiation and Mediation

• Author: By Adrian L. Bastianelli III, Wayne DeFlaminis, and Samarth Barot
• Pages: 11-19

THE CONSTRUCTION LAWYER 11Spring 2020

Adrian L. Bastianelli III

Samarth Barot

Wayne DeFlaminis

Published in The Construction Lawyer, Volume 40, Number 2, Spring 2020. © 2020 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion

thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Strategies for Successfully Navigating

Cultural Differences in Construction

Negotiation and Mediation

By Adrian L. Bastianelli III, Wayne DeFlaminis, and Samarth Barot

Adrian L. Bastianelli III is a past chair of the ABA Forum

on Construction Law, a past editor of The Construction

Lawyer, and a recipient of the Forum’s Cornerstone

Award. He is a partner at Peckar & Abramson, PC, in

Washington, D.C. Wayne DeFlaminis is a director at

HKA in Washington, D.C. Samarth Barot is an associate

at Hollingsworth LLP in Washington, D.C.

Technology, transportation,

and education continue to

cause the United States and

international marketplaces

to grow, and, thereby, shrink

the world. At the same time,

immigration is diversifying

the workforce and popula-

tion throughout the United

States and the rest of the

world. Internationalization

of the construction indus-

try is growing rapidly.1 As

a result, construction lawyers, even those who practice

in remote areas of the country, likely will be involved in

more negotiation and mediation with companies or per-

sons from other parts of the world or of differing cultures.

Recognizing the cultural differences and how to respond

to those differences in negotiation of contracts, change

orders, and disputes will be increasingly critical to the

construction lawyer’s success in tomorrow’s world. This

article is focused on cultural differences between persons

of different ethnic backgrounds and national origins. It

is aimed at assisting the construction lawyer in under-

standing and effectively dealing with these differences in

negotiation of contracts and change orders and resolution

of disputes between culturally different parties.

However, cultural differences go far beyond differ-

ences in ethnicity and nationality. For example, every

construction lawyer understands that there is a cultural

difference between a construction contractor and a design

professional. A lawyer negotiates differently than a busi-

nessperson, a CEO differently than a jobsite foreman,

a federal government representative differently than a

private sector representative, and an insurance claims rep-

resentative differently than anyone else. On an even more

basic level, there are cultural differences between men and

women and millennials and baby boomers that affect how

each group negotiates. It is not possible to address all types

of cultural differences in this article; however, the prin-

ciples and solutions suggested herein apply in very much

the same way to all cultural differences.

Warning No. 1: Do Not Stereotype!

This article treats the citizens of each culture or country

as having one homogenous personality. Of course, every-

one knows that is not true. A native of New York City

who works on Wall Street is likely to be culturally differ-

ent than a West Virginian from a small coal mining town

or a Nebraskan from a farming community despite all

being from the same country. Even within families there

may be cultural differences: People may be culturally dif-

ferent from their spouses, and children different from their

parents. The youth of today certainly are culturally dif-

ferent than their forebearers. And nally, even people of

the same cultural background may act differently from

their counterparts.

While there always are differences in individuals within

a single culture, the so-called dominant trait is a trait

exhibited by a majority of the individuals within the group,

which provides a basis for assigning the group a char-

acteristic in this article. However, it is imperative not to

stereotype groups because individual personalities within

a group always vary. As a result, one must be extremely

careful in generalizing based on country of origin, eth-

nic background, or any other grouping, and one needs

to recognize that the person with whom she is negotiat-

ing may not have the traits typical of her country, region,

CROSS-CULTURAL STRATEGIES