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In international business it pays to appreciate other cultures or as I say- dont soak in a hot tub without bathing first! .......I was in the sauna the other day.  Koreans like Japanese (and me) like to go to the sauna on regular basis to bathe, soak, bake and perspire.  Though Koreans may not have a water culture that is identical to the Japanese, they do have a sauna culture with jimjilbangs and mogyoktangs on almost every block.  When Korea was digging out of the rubble of the Korean war, it was hard for them to get hot water, etc.  So they started going to saunas on a regular basis.

So, while I was in a local sauna, soaking away in one of the many hot tubs (they have cold tubs too) I noticed what looked like an American or European walking in.  I thought he was an American as the area I was in caters to foreigners especially those from the US, etc.  What surprised me was the person I noticed coming in (in Korea all saunas are separate sex saunas as Korea is a rather conservative society) just plopped into the nearest hot tub without bathing!  In Korea like Japan, the bathing etiquette requires one bathe and wash oneself prior to jumping in a hot tub.  The hot tub is there to soak in- not bathe in.  I think he must have noticed the dirty looks he got from people including me, but it didn’t matter. He obviously didn’t look at the signs posted at the entrance of the sauna reminding everyone to wash prior to using the hot tubs.  No-he just continued to soak – upsetting those around him.  He forgot the main rule of international travel and business- to honor the customs and culture of the society you do business in.  Being culturally aware when you travel to other countries is very important.

Obviously, when doing business in a different country than your own you need to be aware of local laws that may impact your deal. You also need to be aware of local customs, culture, language and etiquette.  Is it proper to give your host (or his wife) a gift?  Is it proper to go out to tea or coffee with your host prior to having that initial business meeting?  Is it proper to disregard local religions and customs?  Should you use an interpreter? The list is endless.  It means you need to place emphasis on cross cultural issues.  Likewise, your host, or the local law firm that is advising you on local legal issues must also be sensitive to your culture, as both parties must make an attempt to understand each other prior to trying to do a deal.

Remember, culture will determine how companies or organizations and their negotiators look at or perceive negotiations or business deals.  Some cultures or countries will look at things differently than other groups or countries.  Some cultures will look at the future differently, or will value compromise differently. Some societies promote problem solving while others promote individualistic goals with little concern for the other side.  Negotiating with other countries or cultures can lead to a clash of values, disagreements over the meaning of words, confusion over inaction or action, and of course failed negotiations.  That is why not only communications across culture is difficult but why language itself is key in international communications.  Having a good grasp of your counterpart's language and culture may determine success or failure.    Knowledge of one’s counterpart or customer’s culture language in an international setting is very important for many reasons. For example, it helps avoid the potential for miscommunication, confusion and misunderstanding of issues.

  1. The problem is that some societies—like the US think that language is not important in business.  Everyone speaks English—why learn another language?  Due to geography- people in the US unlike Europe or Asia do not have to learn another language.
  2. Another issue is that in international negotiations language has a direct impact on intercultural business communications.  As language is a major variable in communications it is intertwined with culture.
  3. Language and culture are so intertwined that language without understanding the cultural implications may cause confusion.   Remember, language reflects the environment where people live. It reflects social issues as well as societal values.  It is an extension of culture.
  4. In an international setting, understanding the culture of your counterpart becomes important.  If you understand the culture of someone you negotiate with you have a better chance of succeeding.  Understanding a different culture means you will communicate more effectively than if you had no idea as to the culture of the person sitting across the table form you.

So before you rush off to a foreign land remember to become cross-culturally aware.  Study the culture and language if possible.  Understand your surroundings.  And above all else- dont soak in a hot tub without bathing first!

Flag_of_South_Korea_(cropped)Arbitration in Korea- A new arbitration hub in Asia

Anyone doing business in Korea knows that alternative dispute resolution ( ADR) is gaining popularity in Korea. This is especially true of arbitration which has seen a dramatic increase in the number of arbitration cases over the last few years. (more…)

Screen Shot 2015-07-03 at 11.08.29 PMNegotiations are an often underutilized Legal Risk Management (LRM) tool. Used as a dispute resolution mechanism, negotiations can be used to resolve disputes, internal and external to a corporation, prior to such disputes turning into litigation. It is another tool to avoid the risk of litigation or arbitration and can minimize legal costs and expenses that might otherwise occur.  It can be used to prevent internal discord in an organization and can also be used to resolve differences between governments and political entities besides corporations and companies.  In fact, we all use some form of negotiations on a regular basis and our career or life may be determined on how successful we are at negotiating.  We negotiate for a raise, for a promotion, for a career, for almost everything in life- sometimes without realizing it.

Negotiations can be simple or complex, depending on the subject matter and number of parties involved. International negotiations are the most complex as they involve different cultures, languages, legal systems, and viewpoints. Nonetheless, all negotiations, whether domestic or international, will involve strategies, knowledge of the facts and issues, an understanding of the other side’s viewpoints, and, above all else, an understanding of the problem and risk at hand.  To be successful, one has to be “willing” to negotiate.

1.       Stages of Negotiations

Negotiation can be defined primarily as a decision-making process whereby two or more parties resolve their disputes or differences by advancing their interests vis-à-vis each other. Negotiations may be broken down into several distinct stages:

All three stages are crucial to successful resolution of a dispute or potential dispute that could lead to the risk of litigation and onerous or excessive legal fees and costs.

1.1    The  Pre-Negotiation Stage

Prior to negotiating with the other party or disputant, a party must understand the facts, identify the issues involved, and map out a strategy to deal with negotiations. Though it may seem easy, this stage actually involves numerous steps. Each step may involve several processes or sub-processes as well. The basic steps are as follows:

Knowing your BATNA sets the bottom floor of any deal, as it will set the range of a possible settlement. No party will agree to a negotiation that offers less than the party’s BATNA. By way of example:


Tristar wants to enter into a supply contract with ABC Company to sell TVs at 15 percent above margin. ABC wants to purchase TVs at 5 percent above margin. Tristar knows it can sell all of its TVs to Best Bros. Company at 12 percent above margin. Tristar’s BATNA is 12 percent above margin.

Once a party understands the facts, has defined the dispute to be resolved, and knows its BATNA, it needs to develop its negotiation strategy. There are two basic strategies negotiators use in negotiating dispute:

1.1.1               Competitive-Style ( Position-Based) Negotiation

Negotiations maybe conducted in a competitive manner whereby parties state their positions and negotiate from those positions. It is considered a win/lose strategy or position based strategy. It is the most common form of negotiation strategy that everyone is familiar with, though not the most effective, as it focuses only on the negotiating a party’s wants and needs and does not address the needs and wants or desires of the other party. Many people not familiar with negotiating will tend to follow the competitive style approach, which in some situations will not succeed.

1.1.2             Cooperative-Style ( Interest-Based) Negotiation

Negotiations may also be conducted as a cooperative process or interest based process whereby the parties focus on solving each other’s problems and addressing both parties needs and desires. It is, in other words, a win/win strategy or interest based negotiation strategy.

Parties may use one or the other negotiation strategy of win/lose, or both, or hybrids of both if needed. It is common to use both strategies in one negotiation. Using the strategies depends on how parties perceive negotiations and often whether they want a short-term relationship or long-term relationship with the other party.

In many situations, it is imperative to know the BATNA of the other side. This may facilitate negotiations, as the parties may try to solve each other’s problems. Failure to solve your counterpart’s main concerns and issues may lead to failed negotiations.  Of course, your counterpart has his or her own BATNA. Here is an example of what companies may face when negotiating:

XYZ Company in Korea wants to distribute product XXX in Thailand. Thailand’s laws prevent direct sales.  XYZ wants to find a distributor that can distribute its product XXX.  Bainai is willing to become a distributor. It costs $1 million in investment and setup costs to distribute product XXX. To recoup its investment, Bainai wants a five-year exclusive contract.  XYZ knows it can find other distributors later, but it needs a distributor now. It does not want to sign an exclusive arrangement with Bainai. What if Bainai is a poor distributor? 

Question- What win/win solutions can XYZ and Bainai propose to each other so each can meet its BATNA, or solve each other’s interests? The answer of course is that XYZ and Bainai can agree to an agreement with milestones.  If Bainai reaches a certain level of sales after 1 year it can get its exclusive contract for 4 years.  If it can’t, its agreement turns into a non-exclusive agreement and XYZ can bring on another distributor.  Both sides in effect get what they want.

1.2      Negotiation Stage

The negotiation stage or middle stage of the negotiation process involves numerous decisions too. Once parties have finalized the pre-negotiation stage, decisions still have to be made involving such issues as when, where, and how negotiations will take place.

For instance, parties may start negotiations via e-mail to negotiate minor items before concluding negotiations over the phone. Or they may start negotiations over the phone and wrap up with face-to-face negotiations. Or they may start with using email to negotiate minor items, phone conferences to settle some other items and then meet face to face to conclude the most important items and issues. Therefore, decisions have to be made on how to negotiate to one’s own advantage.

During the negotiation stage, internal and/or external parties and stakeholders may play a part in the outcome. Decisions must be made whether to include them or not. If third parties are involved in negotiations, one or both of the main parties may try to develop coalitions. Third parties may, in fact, add more problems and issues to negotiations or at least bring an added dimension to the discussions.

Parties must also decide upon a venue for negotiations. Many parties prefer a neutral site. However, those negotiators in a strong position may prefer negotiations to be held in their own office. It is all about tactics and to a certain degree perception of the other party’s position.

1.3      Post-negotiation

An equally important stage is the last stage of negotiations or the post-negotiation stage. This stage results in an agreement or resolution. Hopefully an enforceable one at that.

Parties must also decide whether to reduce an agreement to writing or leave it verbal—or a little bit of both. There are several sub- processes in this stage, such as concluding an agreement, drafting it in writing, and having the parties review it and approve it. Of course, each party may need its home office or upper management to approve the agreement as well.   Parties may want their respective Law Departments or outside lawyers to review the negotiated agreements. Agreements need to be reviewed to determine if they indeed resolve the dispute, and if the agreements are enforceable.

It is obvious that negotiation is an important LRM tool. However, to be adequately used as a method to decrease the risk of litigation, the parties on both sides  must be adequately trained in negotiation techniques and must have a proper negotiation mind-set. If the parties come to the table properly prepared, ready to negotiate and seek an amicable outcome, negotiation can be a powerful resolution process and risk mitigation tool.  If not, it may lead to a lost opportunity and an unfavorable outcome.


For those of you who engage in international business, everyone knows that international negotiations are much more complex than domestic negotiations by the fact they  involve different languages, different cultures and perhaps different views of the world.  Culture will determine how companies or organizations and their negotiators look at or perceive negotiations.  (more…)

International Negotiations- Understand Its About Culture!

International business negotiations are much more complex than domestic negotiations.  They challenge negotiators to understand the science of negotiation while they develop their artistry as negotiators.

The science of negotiation provides research evidence to support broad trends that often, but not , always occur during negotiations. The art of negotiation is deciding which strategy to apply when, and choosing which models and perspectives to apply to increase cross-cultural understanding.


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