Miscommunication and misunderstanding are two of the biggest obstacles in mediation. In most cases, there is plenty to disagree about even when the parties understand each other clearly. Mixed signals and misinterpretations make it hard to settle cases, but they are quite common. When the parties speak different languages, the risk of miscommunication only increases. Using a language interpreter can greatly enhance the prospect of a successful mediation. This post contains some tips about how to use a language interpreter to your best advantage in mediation.

As you might expect, there is a frequent need for interpreting services in the court system. The website of the North Carolina Judicial Branch’s Office of Language Access Services is a great source of information about certified court interpreters and the process for requesting one for a judicial proceeding. For a child custody mediation, the Judicial Branch will provide an interpreter at the State’s expense. For most other private mediations and arbitrations, the parties must cover the cost on their own.

The first thing you may need to determine, then, is who will pay the interpreter’s bill. Regardless of who pays, it is best to use a certified court interpreter for mediation of legal disputes. Interpreters are available for over 50 languages. The certification process ensures not only your interpreter’s language fluency, but also an understanding of the particular needs of legal proceedings. For example, it is essential that the interpreter provide a literal translation as much as possible, rather than summarizing or paraphrasing. Using a certified court interpreter may also lend confidence to the process as a neutral alternative rather than an interpreter who is associated with one of the parties.

If a certified court interpreter is not an option, it is permissible in certain circumstances to use a non-professional. Under the Standards of Professional Conduct for Mediators, it is the responsibility of the mediator to ensure the parties understand the mediation process, the role of the mediator, and the party’s options within the process. This includes consideration of accommodations to facilitate a party’s participation and ability to exercise self-determination. A Dispute Resolution Commission advisory opinion allows a pro se party’s family member to serve as interpreter, provided, if a mediation summary is prepared, it is advisable to state in the document that it was prepared in English and state the name of the individual who interpreted it for the non-English speaking party.

Once the logistics are sorted out, there are some simple but important things the mediator and lawyers can do to ensure the interpreter is effective. Before the mediation begins, the mediator should meet with the interpreter to discuss the process and establish expectations. The interpreter should be given the names of the participants and a brief overview of the dispute. It is essential the interpreter understand the importance of confidentiality, both inside and outside the mediation. It should be made clear the interpreter is only to translate what is said, and not to engage in any extraneous conversation. This is particularly important if the same interpreter is used for multiple parties.

The English-speaking participants should speak in short but complete phrases, giving time for the interpreter to translate along the way. Usually, a sentence or two at a time is best, as this ensures the interpreter can keep up while maintaining a good conversational flow. It is best to refrain from legal jargon and Latin phrases. Certain idioms and figures of speech may be challenging for an interpreter who has been tasked with providing a strict, word-for-word translation. It is better to speak plainly than to refer to a party’s “standing in the shoes” of another or describing the weather as “raining cats and dogs.”

English-speaking participants should speak directly to the party rather than the interpreter, avoiding phrases like “Tell her that . . .” and “Ask him if . . .” While it is tempting for participants to shift their attention to the interpreter at times, the mediator, at least, should make a concerted effort to maintain eye contact with the person being addressed, as this enhances communication by conveying non-verbal cues. Mediations requiring a language interpreter may be particularly well-suited to video conferencing, as this facilitates face-to-face communication among many participants while allowing sound levels to be adjusted to optimize a non-English speaking party’s ability to understand.

Although the use of a language interpreter adds some complexity to the mediation process, it also creates the opportunity to set the tone for resolution. It requires agreement and cooperation before the mediation even begins. Throughout the process, the act of speaking through an interpretater highlights the importance of understanding. It forces participants to choose their words carefully. It enables the parties to hear each other through a neutral voice. Working together with an interpreter heightens the perception of collectively working toward the common goal of exploring resolution. With the right preparation, a language interpreter can be an essential component of a successful mediation.

October 19, 2022/by DisputeResolution