Effective communication is key to being a good lawyer. Whether addressing a client or a court, an adversary or a witness, or drafting an employment or business agreement, an email or a brief, the communication and its meaning must be clear.
But one cannot communicate effectively if one does not have a sense of the listener’s values. And this may be particularly true when implementing codes of conduct across borders.
Culture and Communication
Culture is a key part of effective communication. Whether in a personal meeting or drafting a document, the lawyer needs to consider how the message will be received; and the cultural orientation of the message’s recipient may be key.
Imagine, for example, that you are meeting with executives of a corporate client. You have spent an entire day hashing out a strategy for an ongoing or anticipated transaction. Indeed, this is not the first meeting on the topic; there have been a number of calls and meetings over a period of days, but this was the one that would finally bring it all together.
At the end of the day, all attendees feel that they have a settled on a reasonable way forward, including a legal strategy. The strategy is communicated to senior executives at headquarters, who indicate that they approve and will move forward on that basis.
You and your key contact, another senior executive at the client, then go out for dinner. At the dinner, you say, “I’ve been thinking about what we decided today, and I’m not sure that it gives sufficient consideration to a few important issues. I think I have another approach we should consider.”
What is your client’s likely response? Will she welcome your further insights? If she finds your new proposal and thoughts reasonable, is she likely to suggest that the team reconvene and discuss them? Would you expect your client to be grateful for these late-night ruminations, even if they indeed reflect a better approach?
Would your answer be different if you knew what country the client and its executives are from? For example, what if your client is an American company—or a Japanese company? Should this make a difference? Or would you expect it to make a difference?
Of course, your client may well wish that it had the benefit of your revelations earlier in the day, particularly before she transmitted the earlier strategy to headquarters. However, ideas do not always arrive in a linear fashion. Experience dictates that Americans and Westerners in general may welcome new and different points of view, and may be prepared to change direction and act on them quickly.
What if the client is Japanese? Experience in this case dictates that a Japanese company may be reluctant to consider a different approach once the matter has been run by and seemingly approved by senior executives. Generally speaking, Japanese companies’ decision-making occurs in stages, with meetings and documentation aimed at reaching a consensus, from bottom to top; and once the top level approves, the decision is likely to be final. Moreover, the decision-making process is likely to take much longer than in the United States—if the U.S. key players have met for a period of days, the Japanese players have probably met over a period of weeks.
That does not mean the Japanese players do not work diligently, but their style is different from our style.
What Is Culture?
Many organizations now employ a head of culture. This position may be in the area of human resources—but it is not necessarily designed to consider issues such as diversity, or gender equality, or discrimination. Responsibilities would normally include driving successful culture transformations, such as growth or integration of different companies across different regions or countries, communication and branding.
Should “cultural fit” be a legitimate criterion for hire or advancement in an organization? This term could be charged indeed. Presumably, one does not want to screen candidates based on race or ethnicity, or on their acceptance of a culture built on questionable values. On the other hand, an organization may properly look for employees who work well independently, or cross-functionally, and are agile in an organization used to frequent change.
The Dutch social scientist and former IBM executive Geert Hofstede has famously articulated what he describes as four dimensions of societal behavior that dictate or predict differences in business culture. He points to “power distance,” or a society’s acceptance of power differentials among individuals; “uncertainty avoidance,” or a society’s aversion or propensity to risk; individualism versus collectivism,” i.e., its propensity to remain in groups; and finally, what he terms a culture’s masculine or feminine traits—whether a culture may be considered to be principally aggressive or competitive, as opposed to cooperative, modest or passive.
One may quarrel with these constructs, but they are an example of studies given to the idea that people communicate differently, hear differently, and behave differently, in part depending on the society in which they reside.
There are other, perhaps less obvious behaviors, that may affect the way a client perceives colleagues, receives information, and makes a decision. What impression is sent if one is late to a business meeting? Whether one shakes hands firmly or weakly? The answer often depends on one’s country of origin.
What about bowing? Should a non-Japanese attempt to bow to a Japanese host? Should the answer to this question differ depending on whether the meeting is taking place in the United States or Japan? (The answer probably is that if the non-Japanese person is comfortable with bowing, and knows how to do it properly, and is not mocking the Japanese individual, that is fine; but there should be no pressure to do this, and the Japanese individual probably does not expect this gesture.)
In France, colleagues at work often greet each other with a couple of kisses on the cheeks. This is far less likely to be acceptable behavior in Japan, or in China, or indeed in the United States, particularly in the wake or midst of the #MeToo era.
Culture and Codes of Conduct
Issues of culture must be considered when implementing codes of conduct. Societies have differing views of behaviors that Americans view as settled. The problem may not be so much the content, but the way the code is structured and implemented.
Communication, again, is key. Without effective communication and consideration of other cultures, the effort to create a stronger commitment to shared core values and behaviors throughout the group may inadvertently have the opposite effect. Implementing a code across borders without attention to these considerations may strengthen the divide between “us” and “them.”
For example, the simple requirement that a code be signed may be viewed as reflecting a lack of trust in the recipients.
Even more fundamentally, the code may be perceived as reflecting an assumption that people do not take responsibility for their actions or that they lack common sense. Employees may perceive the rules to be self-evident, calling into question the need to write them down.
Dozens of pages of ethical rules, expressed in the lecturing style, may be resented in certain cultures. They may be read like instructions for assembling furniture rather than as guidance for appropriate behavior, and local supervisors may be concerned that they will lose their credibility with local employees if they impose them on their subordinates.
There may also, of course, be substantive divides. For example, policies encouraging employees to blow the whistle on colleagues who are behaving badly may not go over well in countries where whistleblowing is perceived as a deplorable denunciation of colleagues. However, in recent years, thanks to the progressive introduction of U.S. codes of ethics and increasing legislation, this notion is more familiar and accepted as a notion.
And while it is true that most multi-national companies now implement strict rules prohibiting sexual harassment, nevertheless, local laws may remain quite restrictive when it comes to condemning employees for this conduct.
In many countries, the uniquely American system of employment-at-will is not the norm. While the Code may reflect the company’s values, an assessment of whether a breach is sufficient reason for a fair dismissal is left to the courts. So the company’s attempt to standardize certain incorrect conducts can be frustrated, given that the labor courts will have the last word.
Effectively implementing a code of conduct requires effective communication skills, which in turn requires an appreciation of different cultures. While a Code of Conduct should reflect the values of the company, there must also be room for the receiving culture’s values.
Philip M. Berkowitz is a shareholder of Littler Mendelson and co-chair of the firm’s U.S. international employment law and financial services practices. Hironobu Tsukamoto is a co-head of Nagashima Ohno & Tsunematsu NY.