It goes without saying that the key to resolution in mediation is communication. Everyone involved in a mediation must be able to understand what everyone else is saying in order for the process to work. When all participants are fluent in English, language usually doesn’t present any significant barriers to resolution.
But what happens when someone isn’t fluent in English? Unless handled properly, the result can be, in the immortal words of Strother Martin as “the Captain” in the movie classic Cool Hand Luke, “What we’ve got here is failure to communicate.” That in turn can result in the non-English-speaker’s misunderstanding of the strengths and weaknesses of their case; the strengths and weaknesses of the other side’s case; the advice and recommendations of their lawyer or the mediator; and the other side’s (and perhaps even their own) settlement position. That can lead to a lost opportunity for resolution – for the wrong reason.
Having mediated several matters in which a participant spoke almost no English (most recently involving Mandarin- and Spanish-speakers), here are my thoughts as to how to maximize the potential for resolution when language is a problem.
- Be prepared. This isn’t an issue that can be left to the last minute. In my first conference with counsel, well before the mediation itself, I always ask whether a translator is needed. Sometimes the lawyers don’t yet know the answer, in which event it’s important that they find out as soon as possible. Once the lawyer confirms that a translator will be needed, it may take some time to then locate and retain one who is properly qualified (more on this below).
- Get the right translator. It’s also critical that the translator be properly qualified for the job, both as to competence and neutrality – and be perceived as such by the other side. Remember, mediation gives both sides the chance to be “heard,” so it’s important to minimize the possibility that the English-speaking party doesn’t come to believe that they aren’t “getting through” to the other side due to translating issues. One way to accomplish both goals (competence and neutrality) is to retain a certified court interpreter, since the same skills are needed in mediation as in a deposition or court hearing.
- Don’t forget the written word. Not all communication in mediation is spoken. Some of it is written, including the Mediation Briefs and the Settlement Agreement. I always ask that briefs be exchanged, and provided to me, at least 1 week before mediation. I also always ask that both lawyers immediately forward both briefs to their clients, so that the decision-makers have the benefit of both sides’ input before we get together in person. If one of those decision-makers doesn’t speak English, the translator should be asked to either provide written translations, or at least read the briefs to the non-English speaker in the appropriate language.
- Zoom rooms can present a problem. As all of you who have now used Zoom know, people in 2 different Zoom rooms can’t speak at the same time without one of them being cut off. If the translator is in a different Zoom room from the non-English-speaker, whoever is speaking in English must pause after each few sentences and wait for the translator to complete the translation before continuing with the next thought. This is a time-consuming and awkward process, especially if the first speaker was asking a question of the non-English-speaker, requiring the translator not only to translate the question but also the response. The problem can be minimized if the translator is in the same physical room as the non-English-speaker, translating “real-time” as used to happen in pre-Covid depositions and court hearings. It’s therefore best to make arrangements, if at all possible, for the translator and non-English-speaker to be in the same office, in front of the same camera.
- Don’t be shy. Finally, for the mediation process to work properly, all participants must feel a sense of “ownership” in the process. It’s easy for a participant to feel “left out” if they don’t understand what’s happening. That’s especially true if it’s because of a language barrier, since the non-English-speaker, to use the vernacular, doesn’t know what they don’t know. I therefore always make a point at the beginning of a translated mediation to let the non-English-speaker know that they are important to the process, that it’s important that they understand everything that is happening, and that they shouldn’t be shy about asking for help if there is something they don’t understand.
As always, I remain dedicated to providing the best possible ADR services in the format that best suits the parties’ needs, whether through Virtual Dispute Resolution or in person when it is safe to do so. I look forward to working with you.