Bilingual Mediation

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Introduction
Recently, numerous websites having or marketing bilingual mediation services across the States have appeared over the Internet. They are non-profit organizations, community-based law firms or some individual lawyer-mediators or social/mental health professional-mediators. It’s not known from any educational institutions or training entities whether bilingual mediation has actually become part of their long-term curriculum, syllabus, or training program. Among local practitioners, there are rarely mentioned mediators specifically specialized in bilingual mediation. Are those just a few sunrays emerging before dawn or just a marginal hump surrounding the glow of the mediation field?  To many, it may be a negligible appearance, but to some, it’s a part of their own breath and heartbeat, because they either active amongst the community that inherited a culture and language other than English; or they are living isolated, sustained by a culture and language not similar to English; for instance, the deaf community and perhaps the blind community as well.

For many years, from the time Dispute Resolution has become known an Alternative Dispute Resolution (ADR) to resolve conflicts, disputes and lawsuits in the States, the voices and rights of the non-English speaking disputants, litigants or parties related to lawsuits are not addressed accordingly.

One must bear in mind that the terms mediation, dispute resolution or arbitration bear different meanings in each language, culture and community. Each community and country does have their own system or mechanism to resolve disputes and parties may come to mediation session with different aspects, knowledge and experiences about dispute resolution.

Within the last couple decades, interpreters have been retained to facilitate a bridge across language barriers between parties in mediation; however, the issue of using interpreters in mediation has never been studied and addressed in national events, forums, and magazines or media outlets.  Eventually, bilingual mediation has become an attractive way to market mediation service in various parts of the United States.

Nevertheless, bilingual mediation has not gotten much mainstream attention and the voices and concerns of professional bilingual mediators have not been heard.
In this limited article, only a few essential elements of bilingual mediation are dissected and discussed; the full study shall be presented with full research, studies, analysis and critiques.

Is Bilingual Mediator in compliance with Title VI of the Civil Rights Act?
Title VI provides, “[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”

In performing the role of a mediator, it’s the role of the officer of the court and mediation, a judicial proceeding, to comply with the Title VI, particularly the English Proficiency Act of 1964. The right of limited English proficient (“LEP”) individuals grants access of all judicial proceedings and is guaranteed by mandated federal law.

In the letter addressed to the Michigan Department of Attorney General on September 17, 2013, the Department of Justice emphasized: “Dispensing justice fairly, efficiently, and accurately is a cornerstone of the judiciary, and accurate communication is critical to its integrity.” The  letter further  accentuated: [The obligation to provide language assistance services where “credibility and accuracy” are important to protect an individual’s rights,” particularly in the courts.]

In this short presentation, issues appeared are addressed in limitation to a numbers of facts and elements that are part of a much bigger domain demanding voluminosity.

What is Bilingual Mediation?  
The answer may sound easy and obviously trivia. However, until one is involved in a complex and serious dispute or is assigned to take a neutral role as a mediator helping to settle a dispute between parties not having the same channel of communication, the answer may not be a simple one. For the purpose of this presentation, assuming we all know ADR or the mediation process, it is speculated that bilingual mediation would be a process of dispute resolution involving two or more parties not speaking the same native language or dialect and is including, but not limited to, deaf and blind disputants.

Why should deaf disputants and/or blind disputants be considered as part of bilingual mediation?
As previously mentioned, bilingual mediation is not narrowly defined as services needed by non-English speaking/writing parties only, but should encompass various cultural elements that make up a substantial part of a disputant’s life., e.g. a blind person cannot read the signed contract another party presented to him/her. Similarly, a deaf person cannot comprehend what others want to verbally communicate to him/her without a sign language interpreter.

What is the true meaning of bilingual mediation?
Bilingual mediation is known as having a third-party neutral mediator who is well versed in at least two languages, one of which is the native language of at least one party. Some bilingual mediators go even further to address the cultural sensitivity or makeup and highlight the nuances of regional dialects or uniqueness of certain regional distinctions. Some are well versed in marketing their educational achievement, skills and experience. Again, these are only marketing tools, but the real bilingual mediation issues are not well studied and addressed. No one has ever addressed the utmost importance of the existence, roles, rights and interests of non-English speaking disputants, litigants in the mediation process.

Is bilingual mediation an issue that should be explored, studied and addressed?
To a majority of dispute resolution practitioners, it’s irrelevant. However, it’s the most important issue that should be assessed, evaluated and considered before parties, who wouldn’t be able to communicate to each other, can be summoned to mediation session.

Who are the parties of bilingual mediation? Again, there is one answer: parties who cannot linguistically communicate to each other. However, it is not so simple. People from the deaf community would emphatically argue that they are full blood Americans. However they do not speak English, albeit orally, as sign language and written English is the only way of communication that they are able to use.

At the very junction of sparkle in the mediation field, there’s great need for not just qualified dispute resolution professionals who acquired minimum hours of training or even earned a diploma or the most advanced degrees, but rather qualified bilingual mediators. However, bilingual does not necessarily bear the same meaning of bicultural. A bilingual person who has never been evolved in particular culture is not considered a bicultural person. With the same equation, a bicultural personal is not necessary is bilingual person.

There’s not so much emphasis on the ability to speak the native tongues with disputants, but rather bilingual mediators are those who do live their whole lives with very breath and every heartbeats with disputants.

Cultural Competency in Bilingual Mediation
Cultural competency is the fundamental substance of bilingual mediation. Naturally, it’s implied that the bilingual mediator acquires the level of cultural competency parallel with the bilingual level in order to be considered a bilingual mediator.  The challenge is, there’s no set standard or system that effectively quantifies the level of cultural competency. Looking at a macro level, hypothetically, how one can assess the cultural difference between identical twin brothers or sisters? Biologically and physiologically they may look identical, but, one may date the opposite gender while the other prefer to date only the sex partners the same sex; one is extremely devoted Christian, and the other may become a Muslim; one is pro-choice, the other is pro-life; one is ideologically republican and the other is other is a hardcore democrat. In a broader term, how can one assert that a bilingual mediator is culturally competent and linguistically proficient enough to conduct a bilingual mediation session? There are no set criteria available for bilingual mediators to mirror their ability and assess their competency in order to serve as a neutral and impartial dispute resolution professional.

A mediator who inherited another language from their parents or relatives is not necessarily culturally competent enough to be considered a bilingual mediator. A mediator acquiring an advanced degree in foreign languages is not necessarily qualified as a bilingual mediator. It requires a totally different residual cultural formation for a mediator to be qualified as an effective bilingual mediator.

Language in bilingual mediation
Through communication, bilingual mediators can elicit truthful information, parties’ positions and interests. Is a language barrier the only obstacle in mediation sessions? No! Even though most mediators and particularly bilingual mediators strongly believe that communication is the utmost important vehicle in mediation, it is not the only substance that the resolution of disputes or conflicts needs. In fact, communication is an irreplaceable tool in mediation. However, emotion is another much more important element in mediation, especially  that of non-English speaking parties, and is sometimes more important than verbal communication. On top of the emotion of non-English speaking parties, the culture is seldom addressed properly and should be set as top priority in bilingual mediation.  Parties do not bring solely their conflict, they unconscientiously bring along with them the unchecked emotion and personal issues rooted from within their culture.
It’s not a matter of what language a party speaks; the party’s emotional intelligence oftentimes takes charge and governs the objective agenda when they arrive at the mediation.

Cultural Body Language
It’s over said that communication is the main vehicle which mediators use to carry his/her judicial duty as a neutral and impartial third party. Communication is not strictly limited to audible sounds or voices by any means, but further encompasses various important elements such as body language, hand gestures, facial expressions, clothing, jewelry, makeup, and even silence will show a dynamic expression without a single spoken word or utterance.

There are numerous books bearing titles related to certain body language and claiming a specific standard to assess cross-cultural indication and meaning. However, it is arguable that none of those books would be able to assert a competent assessment of a universal and international standard of body language.  No one dares to claim to be able to understand all local dialects of single nation, for instance India or China where there are several hundreds of different local dialects, much less claim to be able to understand all of their body languages. There seems to be no books ever gathering and compiling body languages in many of the cultures outside western nations. There’s no institutionalized set of body languages from any civilized nation where body languages are ratified or coded and implemented into mass population. All are just implied norms that are sometimes misused or misunderstood by others when a mixture of culture has diminished the body language norms often thought valid by a certain dominant culture. Without opening up to dialogue and active cultural communication, different body languages are still misused and misinterpreted even when it’s juxtaposed onto another.

What makes a Mediator a Truthful Bilingual Mediator?
Gerry Spence is a well-known orator, triumphant trial lawyer,  independent thinker, author, educator, and above all, a visionary communicator. It’s not hard to find Mr. Spence’s lectures and presentations through various sources, from live lessons at his Trial Lawyers College to his books and publications through various social media, such as YouTube.

Recently, the opening remarks at his Trial Lawyers College – Gerry Spence passionately said to his class attendants:  “How can I understand you as the juror if I haven’t been where you’ve been. If I don’t struggle where you struggle, how can I possibly communicate to you in any real way.  I don’t know me, I can’t know you. If I can’t know you, I can’t relate to you. I can’t say anything to you that will be accepted by you as real. . . .If I am so controlled and dominated by what’s happening in my life, how can I become free to communicate truth to you.”

What Mr. Spence was passionately talking about is not what we are, who we are and what we know, but rather what and how much we know about the disputants and how we can walk in their shoes. Several centuries ago, a Chinese philosophical master once asked his students: “If you want to draw bamboo, what would you do?” One student replied: “I must have brushes, ink and scroll.”  And the rest of students contemplated various ways to draw bamboo before responding with nonsense answers. The master firmly stated: “The best and the only way that you can draw bamboo is that you must observe, observe and observe bamboo, until you become bamboo; then you can draw bamboo.”

Finally the old Native American prayer which everyone should be familiar with: “Oh, Great Spirit, grant that I may not criticize my neighbor until I have walked a mile in his moccasins.” The true message from the mentioned wisdom and metaphor is to understand the disputants by walking in their own shoes, sharing their same breath and feeling their heartbeats, as well as their agony, their pain and their wishes.

What are the most important substances, skills and attributes of an effective bilingual mediator?
At one brainstorm session at the Mediation Pedagogy Conference at Harvard Law School, each member input at least one element that attributed to the making of an effective mediator. Starting from a broad and extensive knowledge of various fields they offered anthropology, sociology, psychology, religion, history, language, culture, philosophy, and even psychodrama. Then the members discovered that the most important substance in mediation and dispute resolution is not based on the rules of law or the process of mediation, but rather the very humanistic element that praises the great importance of thinking and reason as ways that people can be fulfilled. Naturally no one would deny the fundamental elements of the effective skills needed to conduct a successful mediation session such as active listening, negotiation, the ability to create a good rapport, the ability to identify disputed issues, patience, endurance, perseverance, to be neutral and impartial etc. On top of these mentioned elements, a bilingual mediator must exceed what is commonly exercised in routine mediation and turning into a totally different persona in dealing with non-English speaking parties who reluctantly come to the mediation session with apprehension and distrust. Non-English speaking parties would deliver to the mediation room a whole mixed bag of uncertainty, confusion, hesitation and unreasonable expectations that many English speaking mediators are not prepared to deal with effectively. As a result, non-English speaking parties may painfully leave the mediation room without saying a word, much less the opportunity of venting out their frustration and resentment. Due to the nature of confidentiality in mediation, no one knows what goes on during the mediation session, including the judge who ordered the case to mediation.

Interpreter-Translator-Sight Translator:
To understand and appreciate the role of interpreter in mediation, the definition and meanings of interpreter/translator should be clearly defined once and for all to avoid any misunderstanding about his issue.  It sounds trivial to revisit the distinction between the title and functions of Interpreter, Translator and Sign Language Interpreter. Most the times, interpreters are addressed as translators, including by legal counsel, judges and court staff. To many people, it’s similar or understandably so as they are in the same role, serve supposedly the same function and are compensated the same. However, to numbers of professional interpreters or conscious translators, they are irritated or annoyed, not because they are tacked together, but because it shows the ignorance of terms of a well use of language and lack of appropriation where, at court, language is the utmost important substance of any judicial proceedings.

a. Interpreter Most judicial proceeding, including trials, hearings, arbitration, mediation or out-of-court activities where interpreters are employed to provide oral, verbal, spoken, audible or sign language interpreting services. Interpreters must be proficient in both interpreting modes: consecutive and simultaneous. Either ways, interpreters must possess an active listening ability and be able to interpret simultaneously as required in several assignments, particularly in conferences and trials. Some judges who are very familiar with trials involving non-English speaking parties and the use of interpreters, the judges often monitor the interpreter whether s/he is catching up with counsel; if not, the judge would instruct the counsel to slow down so the interpreter can almost sip-synch with the legal counsel speaking speed. From time to time, the interpreter must perform other types of services during various judicial proceedings called Sign Language Translation. One of the major dilemmas that interpreters face during their professional duties and performance is that his/her interpreting work must reflect the speaker’s tone, voice, expression as sign language interpreters do. However, during trials or hearings, such reflected tones and levels of voice from the interpreter may distract from the actual message and create noise affecting the jurors and the case in whole. The only solution is to situate the interpreter in a sealed room with a clear window to the court chamber which is rarely seen in any court, except at United Nations (UN). Another important issue is that interpreters are hired to provide services to the court and various judicial functions, but rarely is anyone concerned about the interpreter’s fatigue and effectiveness during his/her performance. Most the interpreters that work at the UN do not work more than two consecutive hours each assignment.

Recently, people witnessed on the Carnival Cruise Sunshine two different sign language interpreters hired to provide services requested by a sole deaf passenger. During a forty-five minute show, the two sign language interpreters took turns to serve the deaf viewer. Meanwhile, most the judicial proceedings tend to employ only one interpreter, no matter how long the proceedings last. No one seems to care whether the interpreter’s throat is dried up or their brain is numb from the stress and demanding task, much less the agencies that hired and sent the interpreters to perform the tasks on their behalf.

b. Sight Language Translation This service requires interpreters to perform reading the written material, records, evidences and orally interprets it to audience/listeners. This task requires interpreters the ability to form a truthful interpretation from the text into spoken language. The challenge is that various languages are structured and formed in different ways; therefore, many times, the interpreter must read the whole sentence or the entire group of words in order to understand the meaning and then interpret it without mistaking or misinterpreting the true meaning that the text intended. If the interpreter is not familiar with the text, for instance, with legal, financial, medical or scientific jargon, and even slang, there is no way that the interpreter would be able to truthfully interpret the documents, records or evidence accordingly. If the interpreter is too incompetent to perform the task but wants to save face in front of an open court, they may misinterpret crucial evidence in a case. This would be catastrophic and/or the case would end up in mistrial (criminal) or appeal, not to mention the damages to the integrity of the judicial process. This would definitely cause similar harms to the ADR process as well.

c. Translator The main function of the translator is to translate from one written language to another, without saying a spoken word. The translator must possess a high level of reading and writing comprehension of both languages. The translator can perform this task anywhere and anytime, such as at a library or bus stop, in a bus or car, even in his/her bed. The translator must acquire proficient knowledge of both languages, particularly the specific language and technical aspect of the demanded assignment. For instance, a licensed court interpreter does not necessarily perform well in a high level of scientific medical research, or the methods of determining resources of mineral and crude oil if s/he is unfamiliar with the terminology. Some terms that are familiar to certain professions are not necessarily familiar to translators or interpreters. Some terms related to legal doctrine are not easy for translators to translate and is much worse when the target language does not have equivalent terms. For instance, it’s extremely hard to translate word to word the terms or phrases such as curtilage, estoppels or holder in due course to another language without explanation or annotation where there are no words that have the same meaning or bearing of the same effective legal concept from other language.

As a dispute resolution practitioner, one must constantly assess oneself in various elements, aspects and total competency before taking a task, assignment, or mission to manage the process of mediation where parties are not able to communicate in a culturally competent level. To be an effective bilingual mediator, one should possess the cultural sensibility and linguistic competency to quickly create a rapport that subsequently opens parties up for amicable dialogue.  

Please view Part 2 here.