“What did he say?” The Art of Mediating Across Language, Cultural, and Social Barriers
By Eric Gillett
It should go without saying that good communication is essential to a successful mediation. If, for example, a defendant does not understand a plaintiff’s demand, whether that involves a complex commercial negotiation, a labor dispute, or a personal injury claim, there is little hope that the dispute will be resolved. The parties need to communicate, in both directions, what it is that they need and even better, why they need it. Hopefully, your mediator also serves as your interpreter for the what and the why.
The adversarial nature of litigation, the effort by both sides to get “the best” over on the other, the zero-sum game approach undertaken by most litigants, only increases the communication barrier. Litigants often mistrust the opposing side and choose not to be as clear as they should, fearing that to do so will provide the other side with an advantage.
Add to this a language barrier. Add to that a cultural difference. Add to that a difference in social status. Add any or all of these to the mix and the ability to “communicate” becomes a major barrier to resolution.
If you have a case where the adverse parties speak different languages or come from widely different cultures, you need to be even more selective when choosing a mediator. In a world that is increasingly interconnected, the need for effective communication transcends linguistic boundaries. Nowhere is this more apparent than in mediation, where parties with divergent perspectives seek resolution to conflicts, whether a lawsuit has been filed or not. When individuals involved in a mediation process do not share a common language, the role of an interpreter becomes crucial. In this article, we delve into the complexities and nuances of mediating with parties who don’t speak the same language and explore the vital role that interpreters play in fostering understanding and achieving successful outcomes.
First, it is important to understand the challenges presented by a language barrier. Mediating across language barriers presents a unique set of challenges that can significantly impact the dynamics of the process. Misinterpretations, misunderstandings, and cultural nuances, hard enough to overcome when you speak the same language, may be lost in translation even with an interpreter. Your mediator must navigate these challenges delicately, ensuring that each party feels heard and understood despite the linguistic divide.
So how do you use an interpreter. An interpreter is more than a linguistic conduit; they are key facilitators of effective communication in mediation. Beyond word-for-word translation, interpreters must convey the tone, emotions, and cultural context of the messages exchanged. They act as cultural brokers, bridging the gap between parties and ensuring that the essence of each communication is accurately conveyed. It is important for attorneys to ensure that their interpreter is fulfilling this multifaceted role.
Years ago, I dealt with a Chinese interpreter in a deposition. We hired this interpreter to translate our questions to the plaintiff who did not speak English and to translate the Plaintiff’s answers into English. While we did not speak Chinese and could not understand the words used by the interpreter to translate our questions or the answers provided by the plaintiff, there seemed to be a certain rhythm to the question and the answer that suggested we were communicating well. But at some point, this changed. A question calling for a yes or no answer was asked. The interpreter turned to the plaintiff and presumably recited to the plaintiff in Chinese what had been asked in English. Then the plaintiff responded in Chinese. The plaintiff spoke many words. The interpreter spoke back to the witness. The plaintiff spoke many words again. And then the interpreter turned to us and said, “yes.”
“What did he say?” We were stunned. The plaintiff had spoken in Chinese to the interpreter for several seconds. It couldn’t just be “yes” that was communicated. But that’s all we were given. Something was lost in the translation.
Choosing the right interpreter is a critical aspect of successful mediation across language barriers. Competence in both languages is a basic requirement, but a skilled interpreter goes beyond linguistic proficiency. Cultural sensitivity, understanding of the mediation process, and the ability to maintain neutrality are equally important. Mediators often collaborate with interpreters familiar with the subject matter or the specific cultural nuances involved in the dispute. If the deposition example above was experienced in the context of a mediation, you can easily appreciate how the missed information might be critical to understanding what was needed to settle a case. Therefore, it is imperative that you have a solid working relationship with the interpreter involved.
We have found that if the interpreter is new to you, it is important that you spend enough time with them before the mediation begins to help them understand what you need from them during the mediation. Not only do you need their linguistic proficiency, but their understanding of the party for whom they will interpret.
Effective mediation begins with thorough preparation. Mediators must work closely with interpreters before the session to ensure they understand the context, issues at hand, and the desired tone of the mediation. This collaboration includes briefing the interpreter on any cultural sensitivities or nuances that may arise during the process. Such preparation contributes to a smoother and more productive mediation experience.
The presence of an interpreter can alter the power dynamics in a mediation setting. It is crucial for your mediator to be aware of this potential shift and take steps to mitigate any adverse effects. One way to achieve this is by addressing each party directly and encouraging direct communication whenever possible. The interpreter should act as a neutral conduit, empowering each party to express themselves freely. Speak to your client, not the interpreter.
Miscommunication is an inherent risk in mediating across language barriers. To overcome this challenge, mediators should encourage clarity and repetition when necessary. Additionally, the use of visual aids, such as diagrams or charts, can enhance understanding. The mediator must remain vigilant for signs of confusion and proactively address any issues that may arise due to language or cultural barriers.
Understanding and respecting cultural differences is just as integral to negotiation as is language. Mediators and interpreters must be culturally competent to navigate the diverse backgrounds of the parties involved. Someone from India may think a Westerner’s desire to “get to the point” is off-putting. Someone from China may think that the amount of money is not the most important outcome at mediation. Instead, it may be respecting the honor of the family. Failing to consider these cultural differences often leads to unsatisfactory results. If you haven’t appreciated these differences, you won’t even understand why you have failed.
Mediating across language barriers demands a heightened level of skill, sensitivity, and cultural awareness. The successful resolution of conflicts hinges on effective communication, and interpreters play a pivotal role in facilitating this communication. By recognizing the challenges, selecting a mediator sensitive to these differences, selecting competent interpreters, and fostering cultural competence among all concerned will improve your chances of a successful mediation. A good mediator can bridge divides and guide parties towards mutually beneficial resolutions. In an ever-globalizing world, the ability to navigate linguistic and cultural differences is not just a skill; it is an essential component of successful mediation. Good luck with your next mediation.
Eric Gillett is a founding member and managing partner at Preg, O’Donnell & Gillett. Follow him on LinkedIn at https://www.linkedin.com/in/eric-gillett or at https://www.linkedin.com/in/gillett-mediation. He is licensed in Washington, Oregon, and Alaska. He has tried dozens of cases to verdict and mediated hundreds more. A navigator of resolutions, he is a commercial mediator and can be contacted through his legal assistant, Jasmine Reddy, at 206.287.1775 or jreddy@pregodonnell.com. You can also reach him through his website at www.gillettmediation.com and his email at eric@gillettmediation.com. Mediations in person are encouraged.
