Tips From Steven Skulnik On How Culture Affects International And Domestic Arbitration And Mediation

How will international and domestic arbitration and mediation evolve over the next decade?

Steven Skulnik

Steven Skulnik

“Now the both of us are colorblind / Cause the other side looks greener / Which leaves your turf in the Boise State.”Andre 3000

Earlier this month, the Hispanic National Bar Association (HNBA) hosted their annual convention in Chicago. Among several other great panels, the HNBA assembled a terrific panel titled “The Importance of Culture in Conflict Resolution: Scenarios in International and Domestic Arbitration and Mediation,” moderated by Judge Cristina Pereyra-Alvarez (Ret.), with co-panelists Gloria Portela, John Arrastia, Nicole Levy and Steven Skulnik.

The panelists spoke for about 75 minutes before a sizable audience made up of attorneys from firms of all sizes. The audience learned about how cultural misunderstandings arise, starting in the contract formation stage through contractual performance, mediation, and arbitration, and how best to address and resolve them.

This week, I had the opportunity to catch up with one of the panelists, Steven Skulnik, Senior Legal Editor of Arbitration at Thomson Reuters Practical Law. Skulnik joined Practical Law from Ganfer & Shore LLP, where he was counsel in the litigation department. His practice focused on commercial and employment litigation and arbitration. He previously was counsel at Squire Patton Boggs (US) LLP and a partner at Pavia & Harcourt LLP. He is a Panel Arbitrator with the American Arbitration Association and other arbitration and mediation providers and was named a Super Lawyer (Thomson Reuters) for Alternative Dispute Resolution.

Here is a (lightly edited and condensed) write-up of our conversation:

Renwei Chung (RC): What attracted you to the law and how did you initially get involved in arbitration, mediation, and alternative dispute resolution (ADR)?

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Steven Skulnik (SS): I’ve wanted to be a lawyer for as long as I remember. Shortly after law school, I had the opportunity to work at a law firm that represented European clients doing business in the US. Our clients resisted contracts calling for dispute resolution in U.S. courts, and the U.S. party did not want to litigate in European courts. The parties often compromised by agreeing to arbitration. That gave me the chance to represent clients in disputes outside the courtroom, and since then I’ve become more involved in the field.

RC: Could you give us some examples of how cultural misunderstandings arise? And what are some methods or frameworks arbitrators/mediators use to overcome these misunderstandings?

SS: Different cultures view obligations in‎ the performance of contracts differently. For example, Americans tend insist that the counterparty follow the letter of the contract while other cultures assume that changed circumstances will permit flexibility as long as long the party acting at variance with the contract proceeds in a commercially reasonable manner.

For example, in one case a Chinese party with a franchise from an American hotel chain took longer to complete construction because he found higher-quality materials that took longer to fabricate. He was nonplussed when the American party insisted on strict compliance with the schedule and did not appreciate that he was building a higher-quality hotel.

A mediator who understands this dynamic can help each party understand the other’s point of view. Arbitrators can take these cultural differences into account when assessing issues such as good faith.

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RC: Given your extensive experience in ADR, what are some of the most valuable lessons you have learned throughout your career in relation to the importance of culture in conflict resolution?

SS: I try to understand the cultural norms of the parties. What might look at first blush to be an act of bad faith is often a misunderstanding that can be solved with the right mix of skills and resources.

RC: How do you see international and domestic arbitration and mediation evolving over the next decade?

SS: There are certainly headwinds from the courts, regulators and politicians pointing away from arbitration. Arbitration practitioners have a duty to explain the dispute resolution process in the face of misinformation in the media.

RC: How does your company help those participating in the ADR process?

SS: Practical Law has an arbitration subscription service that provides know-how regarding the life cycle of an arbitration or mediation and the law applicable to those procedures. We have guidance crafted specifically for the various institutional providers, including the AAA, ICDR, JAMS, CPR, and the ICC, as well as guidance on how state and federal law or international treaties and “soft law” may affect your arbitration. Along with other Thomson Reuters legal solutions, Practical Law gives practitioners and arbitrators the tools they need.

RC: What advice do you have for those looking to enter the ADR universe or make ADR a bigger part of their practice?

SS: Learn how to present evidence, particularly cross-examination. In most international arbitrations, direct testimony is provided in the form of written witness statements and hearings are focused almost exclusively on cross-examination.

RC: It was great chatting with you; is there anything else you would like to share with our audience?

SS: There are many free or low-cost events throughout the year on many topics of interest to arbitrators, mediators, and ADR practitioners. Get out of the office and learn from and meet the experts.

RC: On behalf of everyone here at Above the Law, I would like to thank Steven Skulnik for sharing his experience and wisdom with our audience and wish him continued success in his career.


Renwei Chung is passionate about writing, technology, psychology, and economics. You can contact Renwei by email at projectrenwei@gmail.com, follow him on Twitter (@renweichung), or connect with him on LinkedIn.