Not lost in translation: Mediation with non-English speakers

When parties arrive for mediation and extend their hands in greeting, James Browne understands the cultural differences that can be conveyed in the handshake.

Browne, partner at Goodin Abernathy LLP in Indianapolis, has been a registered mediator since 2010 and offers bilingual mediation services. He emphasizes his Spanish is not perfect, but with a mother from Mexico City and father who lived in for a time in Honduras, Browne grew up speaking Spanish at home and learned the cultural mores of the Latino community.

Browne

Immigrants from Mexico represent the largest segment of foreign-born residents in Indiana, with India and China second and third, respectively, according to statistics from the American Immigration Council. Even so, immigrants as a whole comprise a small segment of the state’s population at just 5 percent.

Consequently, the need for interpreters and bilingual mediators is not increasing in Indiana. However, as Browne demonstrates, when non-English speakers arrive for a mediation session, mediators who know the language and culture can gain the parties’ trust more quickly and can bring about an agreement faster.

The substance of the mediation process does not change just because people from different countries are taking part. Yet, Browne noted, especially with Hispanic clients, the parties can be distrustful of the legal system and unsure of what to expect.

But Browne’s understanding of how to shake hands across different cultures — Americans tend to introduce themselves with a strong, powerful handshake, while Hispanics tend to be more polite, barely gripping the other person’s hand — gives the foreign-born clients some comfort.

The Indiana judiciary has a program to train and certify interpreters for the courts. But for mediation, which attorneys say is being increasingly ordered by judges, there is not a pool of foreign language translators from which to draw.

Indeed, the Spanish-translation of the Indiana Parenting Time Guidelines posted on the state court website is years out of date. The English-language version includes all amendments received through Jan. 1, 2017, while the guidelines in Spanish only include amendments received through Aug. 26, 2013.

That disparity drew an angry “com’on!” from Indianapolis solo practitioner Vanessa Lopez Aguilera. Hispanic parents trying to learn their rights and responsibilities will not have access to the updated guidelines and will not be fully educated about what the court allows when they go into mediation.

Aguilera

The court documents may pose a hurdle for members of the Latino community, but in her bilingual mediation practice, Lopez Aguilera has noticed the parties and their counsel find ways to understand each other. Specifically, English-speaking attorneys and their Spanish-speaking clients forge lines of communication through the common mesh of the two languages known as Spanglish.

Although the hybrid-language may be useful, Lopez Aguilera will translate directly from one language to the another. She wants to be sure that in mediation, the parties have a full understanding of what is being said and what the final agreement will do.

Interpreting more than words

Kim Van Valer has not had any requests for interpreters at her mediation practice in Greenwood, and that leaves her a little surprised. She is certain there is a need for bilingual mediation but speculated non-English speakers might be going to other providers or just not seeking mediation.

Van Valer

A former judge who now has her own mediation practice, Van Valer was first trained in civil mediation in 1993 and has been a full-time mediator since 2009. She typically mediates with all the parties seated around one table, but believes if the participants needed an interpreter, she would opt to put the two sides in different rooms. Having to stop talking while the statements were translated would be disruptive and add more formality to the process that should, ideally, be like a casual conversation, she said.

With the parties in separate rooms, the interpreter would be less of an impediment, Van Valer said. But even then, the interpreter in a mediation would have to do more than repeat what the parties say, as is required when interpreting for the courts. As the two sides are working out an agreement, the interpreter would also have to recreate the dynamics of the conversation, she said.

Lopez Aguilera added the interpretation also has to take into account cultural differences, pointing to the example of mothers in the Latino community. They may have to have explained that while the Spanish language says they are “lending” the children to their husbands, in the American system, if their husbands are the fathers of their offspring, those men have the same rights as the mothers.

Mediating across cultures

Browne worried that in a mediation, interpreters would chime in with their own thoughts and views while translating. The task of interpreting can be strenuous, especially in legal matters where the translation needs to boil legalese into the common language of the non-English speaker. Browne recalled in his early practice, he would become mentally and physically exhausted after one or two hours of interpreting for clients.

As his practice has developed, Browne has gained more stamina. Also, as a mediator, he has found his Hispanic clients connect with him and trust him because of his years of experience as an attorney coupled with his Hispanic upbringing.

In his practice, Bill Baten has not seen a rise in the need for interpreters, but he has mediated sessions where some of the parties brought in family members to translate. And, in preparing for mediation sessions where clients are from different countries or speak different languages, he always calls the respective counsel and makes sure the opposing sides have exchanged the necessary information ahead of time.

Baten

Ironically, while foreign-language and cross-cultural issues are not a common part of his mediation practice, it was globalization that introduced Baten, of Van Winkle Baten Dispute Resolution in Indianapolis, to mediation. He was a young attorney working at Cleary Gottlieb Steen & Hamilton in Washington, D.C., when he was assigned to help represent a Japanese company facing 4,000 lawsuits over its product. The business, fearful the American plaintiffs would have a home-team advantage with the juries if the cases went to trial, encouraged its legal team to mediate settlements.

At that time in the late 1980s and early 1990s, mediation was little-known. But Baten, now a full-time mediator and arbitrator, saw the process had benefits far beyond the Japanese company’s cases.•