Strategies for Successfully Navigating Cultural Differences in Construction Negotiation and Mediation

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

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