Mediators and Interpreters: A Team Approach

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I entered the barber shop knowing exactly the kind of haircut I wanted. The barber asked how I wanted my hair cut and I responded: “Use a number three on the clippers all around my head.” Of course it is always better to go into a barber shop knowing what you want. However, this barber stopped a moment to ask if I really wanted that for my haircut. He then asked if I knew that hair grows forward. To be honest I had never really thought of what direction hair grows and if asked before that day I believe my answer would have been that hair grows “out” from wherever it is. We settled on a number three for the top of my head and a number two for the sides and back. He was right as his professional judgement resulted in a style that was perfect for me.

The conversation with the barber gave me pause. As I reflected on the encounter, there was value in deferring to a professional view. Given his experience and skill in barbering the proper style of haircut was all too obvious to him and he really could provide me with a style appropriate for me, if I would only listen. I did listen to him and was pleased with the outcome of my haircut.

I also wondered “why” I had never thought about the direction hair grows. Suffice to say there probably was no need to question why in my past. However, now the seed had been sown.  I suspect we would be in agreement that the concept of “why” is not unique to the human animal as other living beings are curious about the world we inhabit. What I think is unique about us, as opposed to other animals, is when we ask why then learn information that can provide new levels of understandings regarding the topic of our inquiry. Such was the case as I researched the direction of hair growth. I will not belabor the point here yet there is much to learn about how color, type of hair, ethnicity, length, and genetics all have some effect on the direction hair grows. And no, hair does not just grow forward.

As Americans we hold fast to the practice and principles of democracy.  We have a Society that makes important the development and maintenance of an educated people.  Americans have an enduring sense of fairness and we know when it has been abandoned. We will ask our elected leadership why they desire to implement particular policies.  When those policies do not make sense we will make effort to change said policies.  The concept of why is at the foundation of critical thinking, a very real value of our American culture. We question reality, look for answers, are creative in resolving issues, and as a people we are not afraid to speak out loud and challenge ideas benefitting the few. We do this early in school by teaching students to understand the “why” behind content and skills. So as a mediator I began to ask why certain conditions are a part of the mediation process. I have reviewed the orientation/introduction of sessions, the caucus, and use of non-adversarial language in the session, Procedural (fairness) Justice versus Distributive (share taking) Justice, and now how mediators can work best with interpreters and translators in mediation.

Mark Twain said: “The two most important days in your life are the day you were born, and the day you find out why”. We are mediators, protectors of the process. Many will say “guardians of the process” however I prefer to reflect the non-adversarial nature of ADR processes by using assertive, non-aggressive language. We are mediators, working on a variety of conflict issues, dealing with various types of personalities, and utilizing different styles of mediation to assist the disputing parties in making decisions. The beauty of mediation is its flexibility and as mediators during the session we work to level the field, empower the parties, provide a safe place for them to tell their story, and set the stage for the development of a collaborative agreement. We identify the rights, interests, and power elements between the parties. We adhere to the tenets of both the democratic process, providing a place for individual self-determination through their right of decision making. And, Procedural Justice with a strong focus on the parties knowing the procedures they are asked to follow and that said procedures are implemented fairly. We, as mediators, have determined that our “why” is to provide these services to humanity in the effort to assist the disputing parties as they create non-adversarial resolutions of their disputes and conflicts.

As the mediation process is flexible it is available to all members of our Society. Mediators have sessions when the parties are not able to communicate well with us and us with them. Perhaps it is a language concern or a session where one of parties has lost their sight, or perhaps they cannot read.

Many mediators have conducted mediation sessions with the assistance of an interpreter or a translator. The Migration Policy Institute’s National Center on Immigrant Integration Policy presented some interesting facts in their Limited English Proficient (LEP) Data Brief of December 2011. It was stated “The number of US residents who are deemed to be Limited English Proficient (LEP) has increased substantially in recent decades, consistent with the growth in the US foreign-born population.” The Brief indicated that the historic immigrant-destination states remain California, Texas, New York, New Jersey, Florida, and Illinois. However the report was quick to mention that “significant numbers are opting to settle in nontraditional destination in the Southeastern, Southwestern, and Northwestern United States.” The following data informs us of the trend in the US population up to 2010 and I see no current reason for the numbers decreasing.

• (circa 2010)there were 25.2 million LEP individuals, 9 percent of the US population, all over the age of 5
• In CA, TX, NY, FL, IL, and NJ there were 1 million or more LEP residents, totally 68 percent of the total LEP population
• Ten states had LEP populations between 300,000 and 999,000, 18 percent of the total LEP population
• In 11 states with the District of Columbia there were less than 50,000 LEP at 1 percent of the total US population
• In Puerto Rico there were 2.8 million LEP individuals as residents

The Migration Policy Institute publishes a Fact Sheet Series focusing on English Language Learners (ELL). In 2015 reported information taken from the U. S. Census Bureau’s 2013 American Community Survey identifying the level of English proficiency of every member of a household.  They found that “Spanish was the most common home or first language, spoken by 71 percent of ELL students.” After Spanish, the most popular languages spoken in ELL students’ homes were (circa 2013): Chinese, 4%; Vietnamese, 3%; French/Haitian Creole, 2%; Arabic, 2%; and Hmong, German, Filipino, Tagalog, Korean, Yiddish, and Jewish all at 1%.

Statistical information for mediation cases involving interpreters in the state of Florida is not routinely recorded. However, some of the judicial circuits do keep such information. The Broward County Interpreters’ Office, in the 17^th Judicial Circuit, is a forward thinking operation intent on understanding and meeting the needs of the public.  They have provided data I can share with you regarding the number and types of mediation sessions requiring the services of their staff interpreters. The office has been keeping records since the latter quarter of 2015. To date (early December 2017) nearly 300 court- ordered mediations have required court staff interpreters. Interpretation of Spanish (all regions) and French/Creole for family cases involving the dissolution of marriage are routinely provided by the Court Interpreters’ Office. This is understandable given the proximity of South America and the Caribbean/West Indies to South Florida. Hence the demographics of the South Florida community are reflected in their dominant mother language.  The Court Interpreters’ Office does provide interpreters for all languages in Dependency cases.  Requests for other languages (i.e. French, Hebrew, Russian, and Vietnamese) are at times sought for mediation sessions. The Court Interpreters’ Office does not provide staff for those languages. Usually private interpreters and/or translators are hired by the disputing parties to provide such services.   

Why would any of this information be important? Well for those mediators who have not yet worked with an interpreter or translator you may want to consider the changing demographics of spoken languages in the United States.  The chances are in favor of you needing the assistance of an interpreter or translator at some time, as a team member, in the mediation process.  I think you will find as many of us who, working alongside of interpreters and translators have, that they are a highly skilled, talented, and experienced group of professionals who provide a necessary service helpful in the dispute resolution process.

Do you know the difference between an interpreter and a translator?  Do you know what sight translation is? Did you know that all certified interpreters and translators have a set of rules they must follow?  I will provide you with important information as we progress because knowing how to best work with this dedicated group of professionals will have a positive impact for the disputing parties, our communities, our nation, and the dispute resolution field. There are various interpretation and translation styles, including court, medical, business, and interpretative to name a few. Sign interpreting and translation has its own special style to be explored in another piece. My intent in this article is to focus on how best to work with verbal interpreters and translators in the mediation process.

I wondered about the “why” we have and need interpreters/translators in life – beyond the obvious. The biblical story of the Tower of Babel comes to mind. A story taught to us as children has a profound lesson to discern. Mankind had grown prideful in the success we had achieved in manipulating our environment.

In Genesis 11 the story of the Tower of Babel is briefly explained.

Descendants of Noah lived in Babylon, an area of Mesopotami. There they founded Shinar where they strived. Their population grew and at the time they spoke one tongue, one language. They called themselves Babylonians and conceived an idea to build a symbol of their success as a people. They thought a tall tower, one that could “reach to the heavens”, would be the proudest symbol of how great they had made their nation. The Babylonians thought the tower would show that they too would be like God, therefore that they would no longer need Him. They began construction on a great ziggurat.

God viewed this effort as arrogant and prideful. God then made the people to suddenly speak different languages so they became confused, unable to communicate or work together and building the tower was no longer possible. The people could not understand each other and they then began to scatter across the land. The tower was named The Tower of Babel because the word babel means confusion. This story is a powerful reminder of how important it is to obey God’s Word and to not think that we can build a successful but godless life on our own. 

Now as taken from Genesis 11:1-9–

1 Now the whole world had one language and a common speech. 2 As people moved eastward, they found a plain in Shinar and settled there. 3 They said to each other, “Come, let’s make bricks and bake them thoroughly.” They used brick instead of stone, and tar for mortar. 4 Then they said, “Come, let us build ourselves a city, with a tower that reaches to the heavens, so that we may make a name for ourselves; otherwise we will be scattered over the face of the whole earth.” 5 But the LORD came down to see the city and the tower the people were building. 6 The LORD said, “If as one people speaking the same language they have begun to do this, then nothing they plan to do will be impossible for them. 7 Come, let us go down and confuse their language so they will not understand each other.” 8 So the LORD scattered them from there over all the earth, and they stopped building the city. 9 That is why it was called Babel —because there the LORD confused the language of the whole world. From there the LORD scattered them over the face of the whole earth.

 

The messages in the Tower of Babel story are indeed profound and our lessons made a significant impact on how mankind related to each other. As communication became a challenge our interactions were fraught with suspicion and derision. It is true, however that something is lost and something is gained in living every day. Given mankind’s infinite diversity and adaptation to what life presents for us, is it any wonder that we eventually found ways to adjust to this new environment? We began to learn each other’s language, or at least some talented and skilled among us did. Interpreters and translators are playing a vital role in rebuilding bridges of communication long ago disrupted. Mediators routinely assist disputing parties in resolving their conflicts and disputes in a non-adversarial manner. Working beside interpreters and translators only makes our job easier, more effective, and leads to more successful conflict resolution for the disputing parties. 

It makes good sense that we partner with interpreters and translators for cases where language is a barrier to communicate. They certainly have and exercise the tools mediators need to breakdown the borderlines between the parties so we can facilitate them finding common ground. We have much in common with this professional group. Let us look at our commonalities.

Mediators are directed by fifty-seven Florida Rules for Certified & Court-Appointed Mediators; while interpreters and translators are directed by ten Florida Rules for Certification and Regulation of Spoken Language Court Interpreters: Code of Professional Conduct. We share very similar rules that fall under the category of best practices. Here are some examples of the rules we share.

• Mediation Rule 10.200 Scope and Purpose – These Rules provide ethical standards of conduct for certified and court-appointed mediators. …These Rules are intended to both guide mediators in the performance of their services and instill public confidence in the mediation process… Interpretation Rule 14.300 Professional Conduct – All court interpreters shall act in a professional manner in keeping with the Code of Professional Conduct as set forth herein.
• Mediation Rule 10.220 Mediator’s Role – The role of the mediator is to reduce obstacle to communication, assist in the identification of issues and exploration of alternatives, and otherwise facilitate voluntary agreements resolving the dispute… Mediation Rule 10.300 Mediator’s Responsibility to the Parties – The purpose of mediation is to provide a forum for consensual dispute resolution by the parties. … A mediator’s responsibility to the parties includes honoring their right of self-determination; acting with impartiality, and avoiding coercion, improper influence, and conflicts of interest. A mediator is also responsible for maintaining an appropriate demeanor, preserving confidentiality, and promoting the awareness by the parties of the interests of non-participating persons. A mediator’s business practices should reflect fairness, integrity and impartiality. Interpretation Rule 14.350 Professional Demeanor – Interpreters shall conduct themselves in a manner consistent with the dignity of the court and shall be as unobtrusive as possible.
• Mediation Rule 10.310 Impartiality – Decisions made during mediation are to be made by the parties. A mediator is responsible for assisting the parties in reaching informed and voluntary decisions while protecting their right of self-determination. A mediator shall not coerce or improperly influence any party to make a decision or unwillingly participate in mediation. A mediator shall not intentionally or knowingly misrepresent any material fact or circumstance in the course of conducting mediation.
• Mediation Rule 10.370 Advice, Opinions, or Information – A mediator shall not offer a personal or professional opinion intended to coerce the parties, unduly influence the parties, decide the dispute, or direct a resolution of any issue. …A mediator shall not offer a personal or professional opinion as to how the court in which the case has been filed will resolve the dispute.

 Interpretation Rule 14.360  Scope of Practice – Interpreters shall limit themselves to interpreting or translating, and shall not give legal advice, express personal opinions to individuals for whom they are interpreting, or engage in any other activities which may be construed to constitute a service other than interpreting or translating while serving as an interpreter.

• Mediation Rule 10.330 Impartiality – A mediator shall maintain impartiality throughout the mediation process. Impartiality means freedom from favoritism or bias in word, action, or appearance, and includes a commitment to assist all parties, as opposed to any one individual. Mediation Rule 10.340 Conflicts of Interests – A mediator shall not mediate a matter that presents a clear or undisclosed conflict of interest. A conflict of interest arises when any relationship between the mediator and the mediation participants or the subject matter of the dispute compromises or appears to compromise the mediator’s impartiality.

Interpretation Rule 14.330 Impartiality and Avoidance of Conflict of Interest – Interpreters shall be impartial and unbiased and shall refrain for conduct that may give an appearance of bias. Interpreters shall disclose any real or perceived conflict of interest. …The interpreter should avoid any conduct or behavior that presents the appearance of favoritism toward any of the parties. Interpreters shall disclose any real or perceived conflict of interest.

• Mediation Rule 10.500 Mediator’s Responsibility to the Courts – A mediator is accountable to the referring court with ultimate authority over the case.

Interpretation Rule 14.330 Impartiality and Avoidance of Conflict of Interest – The interpreter serves as an officer of the court, and the interpreter’s duty in a court proceeding is to serve the court and the public to which the court is a servant.

• Mediation Rule 10.360 Confidentiality – A mediator shall maintain confidentiality of all information revealed during mediation except where disclosure is required or permitted by law or is agreed to by all parties.

Interpretation Rule 14.340 Confidentiality and Restriction of Public Comment – Interpreters shall protect the confidentiality of all privileged and other confidential information. Furthermore, interpreters shall not publicly discuss, report, or offer an opinion concerning a matter in which they are or have been engaged, even when that information is not privileged or required by law to be confidential.

• Meditation Rule 10.760 Duty to Inform – A certified mediator shall inform the DRC in writing within 30 days of having been reprimanded, sanctioned, or otherwise disciplined by any court, administrative agency, bar association, or other professional group. Mediation Rule 10.640 Skill and Experience – A mediator shall decline an appointment, withdraw, or request appropriate assistance when the facts and circumstances of the case are beyond the mediator’s skill or experience.

Interpretation Rule 14.370 Assessing and Reporting Impediments to Performance – Interpreters shall assess their ability to deliver their services at all times. When interpreters have any reservation about their ability to satisfy an assignment competently, they shall immediately convey that reservation to the appropriate judicial authority.

• Mediation Rule 10.630 Professional Competence – A mediator shall acquire and maintain professional competence in mediation. A mediator shall regularly participate in educational activities promoting professional growth. Mediation Rule 10.670 Relationships with Other Professionals – A mediator shall respect the role of other professional disciplines in the mediation process and shall promote cooperation between mediators and other professionals.

Interpretation Rule 14.390 Professional Development – Interpreters shall continually improve their skills and knowledge and advance the profession through activities such as professional training, continuing education, and interaction with colleagues and specialists in related fields.

The connections between our professional fields are many as viewed by the rules we share. There is a pointed intent for members of both professions to respect and interact with others engaged in the mediation process. Interpreters should all be treated with respect and as skilled professionals.

I took the opportunity to interview both certified and not certified professional interpreters and translators.  There were some important points made mediators should always consider. As interpreters and translators often play an important role in the mediation process, I would like to share with you their expressed views on mediation and how they see their role when working with mediators.

• They must pass a standardized test to become certified
• As professionals they must meet specific requirements every two years to remain certified
• They must apply for and earn continuing education credits
• They want to be thought of as professionals, treated with dignity and respect
• They are neutral in the mediation process
• They may be employed by the parties but they work with the mediator
• They are a vessel for the mediator in the process
• There are three styles of interpreting: simultaneous, consecutive, and sight
• Preferred style in mediation is simultaneous; consecutive is much slower and takes longer; sight is for reading documents
• Interpretation is spoken; translation is written
• Mediators should speak directly to the parties; the interpreter will render what was said to the parties and will provide their response directly back to the mediator
• Mediators need not ask the interpreter to convey a message to the parties; just say what needs to be said
• Interpreters prefer to not be told what and how to interpret
• Interpreters always want to complete the rendering of what is said or written without interruption from the mediator
• Mediators should include comments regarding the interpreter/translator in the Orientation/Introduction of mediation
• When requesting an interpreter one should provide the following information: case name, case number; type of case (e.g. family) and language requested
• Interpreters have the right to refuse interpreting for certain situations
• They feel strongly that culture must be a major focus and attended to by the mediator in sessions in the effort to provide competent interpretation/translation service

Interpreters are people and would not want to be viewed as some sort of speaking machine. They have reported that in general their treatment in mediation sessions is positive. Also, when they made a suggestion to the mediator regarding the interpretation or translation in the session it is usually well –received.  They do understand, however that there can be the appearance of non-neutrality or bias if the interpreter/translator is employed by a singular party.

When you consider exactly what interpreters and translators do it is difficult not to be impressed. Consider that they are listening in one language, converting what they are hearing into a second, different language, and then repeating what they are hearing and processing word for word. They do not change what was said, the tone used by the speaker, nor the emotion expressed.

I asked a small group of professionals a set of questions to gain a better understanding of their field. The following is an example of their responses:

• What are the qualifications to be recognized as an interpreter? – “The profession is not controlled or regulated in the United States. So any person whom can speak at least two languages can call him or herself an interpreter. The professional requirements are more complex. You really need to understand the language, the culture, [sic] customs of the country of the community of the language you speak. Each language is tinted with nuances that relates to the culture of the place. If you don’t know the culture your interpretation might not be as accurate.”
• Are there different qualifications for court-appointed interpreters? -“Yes, it is very specific. They are a tool, [sic] an equipment that the court uses. They are neutral. Cannot even express any facial gestures to give any type of approval.” And, “There is a certification process.”
• Have you provided your services in a mediation setting (session)? – “Yes many times.”
• In mediation how best should the mediator work with you as the interpreter for the parties? – “Let the interpreter be.” And, “We are a tool for the mediator to use. We are part of the mediation team. The mediator should meet with the interpreter prior to the session to discuss the process. The mediator tends to interrupt the interpreter, improperly. They need to be patient.”

• Is there anything you would suggest to improve the mediation setting for interpreters? –“Not really. The interpreter is ethical and completely neutral.” And, the mediator should introduce the interpreter to both attorneys and what [sic] her role is. Let the interpreter speak without interruption by any person. Usually both the mediators and attorneys do not know how to work with the interpreters. The mediator can say to the attorney for the interpreter to finishing speaking first.”
• In your own words what is your understanding of the mediation process? Do you think it has value for the public? Is it a useful method for people to resolve their differences in a harmless manner? – “Absolutely useful and helps people to resolve differences in a harmless manner. Mediation works when it lets the parties craft their own resolution with mediator assistance.” And, “It can be a waste of time because not all the parties respect the intent of the mediation process. It has potential for good, but in reality that is not what happens.”

The participants had common concerns. They want mediators to recognize them in the orientation of the session; they want to be recognized as neutrals, skilled professionals, and a part of the mediation team. Specifically, they have a strong desire to do their job, meaning let them interpret/translate as professionals. I could not support their desires more. A certified interpreter/translator is an asset in any mediator’s efforts to assist the parties in resolving their issues. I do not view them as tools but rather as colleagues working with them together to benefit the parties and our respective professions.

I will highlight what you will want to consider when selecting an interpreter or translator. Let us take a look at qualities in an interpreter.

When selecting an interpreter there are certain qualities they should possess, regardless of their status as certified. Here are six key conditions you should consider when working with an interpreter. After all, good interpretation involves far more than being able to repeat what is heard. The following conditions are thought of as essential to be a good interpreter:

1. Be an extremely good listener. Interpreters must pick up on every word, the speaker’s intention, and every meaning. They discern a message composed in one language then simultaneously construct and articulate the same message in another.
2. Possess extraordinary cognitive, motor, and sensory skills. Such skills, working together ensure that all nuances and idioms are detected and conveyed in an understandable manner, including the language. This is all done in moments.
3. Having a wide-ranging vocabulary, consisting of multiple languages, is vital to the success of the interpretation. They work in the present-time; they cannot stop to turn to any dictionary or reference sources. They need an excellent knowledge of the language, subject-matter, jargon, abbreviations, and the subject language.
4. Cultural awareness is a must. Not only is subject knowledge important in the interpretation process, interpreters must focus on the culture of the languages they are interpreting from and into.
5. Stress and self-control as they deal with difficult speakers remains an element of interpretation and acquiring coping skills is important for interpreters. Most people do not speak or think clearly, some have local accents that can be difficult to discern. Interpreters are challenged to remain relaxed and focused even in tough situations.
6. Develop and demonstrate deep emotional resilience. In cases of a legal and medical nature, interpreters are often exposed to facts and situations that are difficult to observe in murder trials, emergency medical situations and deaths. When involved in these cases, they have a level of flexibility and focus to convey an accurate message for the people on whose behalf they are speaking.

There are similar conditions for translators. You will want to consider:

1. Check to see if they fully-qualified to provide the service you need. Ask did they earn a degree or received a post-graduate diploma in translation.
2. Are they’re working in their mother tongue? Growing up with the language usually indicates they will have a keen understanding of any linguistic elements involving grammar, spelling and the rate of flow for the text. They should be better at understanding various cultural sensitivities and local nuances.
3. You will want to know their translating experience. Quality translation usually is associated with adequate or extensive experience. It would seem crucial for consideration when selecting a translator. Perhaps a minimum of 5 years’ experience of translation would be primary. Specialized skills in areas (e.g. medical, financial, technical etc.), is very important those type case and careful consideration must be given to the translators’ knowledge and experience of the subject matter.
4. Do they hold membership in any recognized linguistic association? Such affiliation with professional groups can indicate competence and credibility. Many associations generally have a code of conduct that ensures the same high-standards are maintained.
5. You may wish to test the translator prior to offering to hire them. You will want to ensure that they can do the job they’re being hired to do. A good test would be for them to complete a sheet using similar material of what they would be translating or maybe an excerpt from the text in question.
6. Take time to check with references. Seeking recommendations or referrals are solid methods of checking the credentials of the person you are looking to employ. Professional references for their translation experience is essential for quality work.

The more carefully you screen your translators, the better you can guarantee the quality of your translations. There are a lot of great translators in the field; they are found through the court programs and through private agencies. Attend to the criteria above and you will be able to select the right match for your mediation needs.

When properly and correctly implemented the mediation process has a positive impact on the relations between individuals, entities, companies, and nations. As a democratic process where the parties have the responsibility for deciding any action to be taken, the human species can be elevated to the next step in our development. The process of mediation is flexible and can be utilized to aid in the non-adversarial resolution many types of issues, disputes, and conflicts involving various levels of power, interests, and rights. The partnership between the mediator and the professional interpreter or translator is an integral element is rebuilding communication between disputing parties. In those sessions where American English is not the mother language of one or both of the disputing parties, but it is for the mediator, the professional assistance of the interpreter or translator is essential. My intent was to provide for the professional mediator relevant information to allow us to work even more successfully with professional interpreters and translators to the ultimate benefit of the disputing parties. The conditions reviewed for selecting an interpreter and those conditions for selecting a translator should inform the mediator how best to do just that.