David S. Willig: Bilingual Mediation Too Often an Afterthought

David S. Willig Bilingual Mediation Too Often an Afterthought

David S. Willig

BY DAVID S. WILLIG, ESQ. – Alternative Dispute Resolution continues to be a growth industry, throughout the United States and around the world.

Among ADR techniques and mechanisms, mediation leaves the result in the hands of the parties, rather than one imposed from “on high.”

In mediation, the mediator’s only power is that of persuasion, along with creativity in proposing ideas that lead to a negotiated solution. This is challenging enough in normal circumstances. In many instances, mediation can be more challenging still when the parties have language differences.

Language in mediation is critical, because of the mediator’s role in guiding the parties toward settlement through suggestion and persuasion. In the increasingly diverse communities established or emerging in many parts of Florida, and the U.S., we see language issues more often come to the fore.

Disagreeing in two languages

In South Florida, parties frequently express a preference for a bilingual mediator who is able to communicate with litigants. It would seem elementary that a mediation conducted between parties speaking Spanish, with a mediator who also speaks Spanish, should go as smoothly as any mediation could go. This is not always the case, because many things can stand in the way of settlement at mediation.

One tactic a party might utilize is to disregard the other’s preference for a bilingual mediator. There could be any number of perceived advantages in doing so. A party may “even the playing field” for mediation by hiring an interpreter, one of a number of “alternate solutions,” since truly effective bilingual mediators are not so easy to find. Short of a bilingual mediator, a number of alternatives, good and bad, may be considered.

Friends and staffers

Parties lacking in English nuance may simply try to get by with what they have. Such a party may consider bringing a friend to communicate in both English and the party’s native language, or some other language. For example, most Haitians speak Creole, but many also speak French.

Still, a “friend” may have limitations that may be equally impactful. Perhaps the “friend” does not have the knowledge to explain adequately the subject matter or choices facing a litigant. A common solution in South Florida is a bilingual attorney. Where resources are available, a party can hire an interpreter to assist.

An attorney who is not bilingual may bring an office staffer who is, and does speak two languages fluently, and while the success of that alternative can vary, it is still likely an improvement over the “friend,” in many cases.

In some instances, a “weak link” may be the parties’ over-protective counsel. An English-only attorney is frequently uncomfortable even allowing the mediator in “caucus” to address the client in the foreign language. This is unfortunate and unnecessary given the benign and confidential, yet powerless mission of the mediator.

A slower process

The mediator must watch the time spent with the respective parties. Language may require more time with an interpreter, or simply render communications a slower process. The mediator should explain to both sides that additional time may be required for one or the other.

The mediator should also be mindful of confidentiality, a hallmark of mediation. With more individuals involved, the universe of persons expected to uphold the confidentiality of the mediation broadens.

The mediator must extend the discussion of confidentiality to those not parties or counsel. It may be prudent for the mediator to prepare a document to be signed by the “friend” or interpreter, agreeing to be bound by the same confidentiality.

The mediator must not overlook the possibility of success, notwithstanding. That, too, may require additional work when crafting a settlement agreement.

In an extreme case, a mediated settlement agreement might be drafted, or translated into the language of the party needing it, where time and resources permit. A detailed explanation, through the interpreter when present, with an acknowledgement of that, may be an adequate substitute, though that party will be bound under Florida law.

Language issues are too often an afterthought. When the issue comes up, usually at the last minute, the statement that “We can just bring along _____” is not an uncommon reaction, without much thought to substantive or linguistic competence.

Nelson Mandela famously said, “if you talk to a man in a language he understands, that goes to his head. If you talk to him in his language, that goes to his heart.” A mediator who can bridge that gap remains the gold standard for bringing together in settlement the disputing parties in conflict.

David S. Willig, is a mediator certified by the Florida Supreme Court for the civil circuit. As an attorney, he practices in both Florida (since 1988) and Paris, France (since 1997), has been general counsel to a growth start-up, and brings to the table a broad range of legal experience, having also worked in the legal profession in English, French, Spanish, Portuguese, Haitian Creole, and other languages. He is readily available for mediation in South Florida, and can mediate disputes anywhere by special arrangement. He can be contacted at 305-860-1881, and his Miami office is located at 2837 SW 3rd Ave, Miami, FL 33129.

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Donna Balancia, Publisher
The Florida Law Journal