© 2013 David S. Willig. All rights reserved.
Alternative Dispute Resolution (ADR) continues to be a growth industry, particularly amid lackluster economic conditions in many parts of the world. Among ADR techniques and mechanisms, mediation offers the most control by the parties over the dispute resolution process.
Mediation leaves the ultimate result in the hands of the parties, rather than a solution formulated and imposed from “on high” such as a judge or an arbitrator. In mediation, it is not the mediator’s power that spurs the parties to resolve the dispute. The mediator does not have the authority to make a binding decision without the parties’ assent. Rather, the mediator’s power is the power of persuasion, along with creativity in proposing ideas leading to a negotiated solution.
This is challenging enough even in normal circumstances. In many instances, however, mediation can be more challenging still when the parties have language differences between them. With the increasing use of mediation as a contractual pre-condition to some other dispute resolution process, in agreements small and large, from consumer transactions to international business agreements, such situations are likely to come up more than ever before.
It would seem axiomatic that a mediation conducted between parties who speak, say Spanish, with a mediator who also speaks Spanish should go as smoothly as any mediation could go. This is not always the case, nonetheless.
Experience shows that the real “weak link” in such a situation is usually the parties’ counsel. If both counsel do not speak the language targeted for the mediation, that mediation is unlikely to be successful.
Indeed, it is hard to imagine an attorney who does not speak that language even to allow the mediator in a “caucus,” or “private session,” to speak to his or her client in that foreign language. This is true notwithstanding the benign and confidential mission of the mediator to guide the parties toward a resolution of the pending dispute.
Of course, this does not mean we must shrug our shoulders and throw up our hands in despair. In the context of mediation, a bilingual mediator can provide an invaluable opportunity to settle a dispute in a forum where the parties’ native language(s), if not English, can play an important role. This is quite unlike the context of a court case, for example, where the official record will be in the language of the forum.
Language issues are often overlooked, or considered as an afterthought: “we can just get an interpreter,” is an oft-heard refrain. Still, having a mediator who can bridge the gap linguistically remains the most viable means to bridge the gap between the disputing parties in conflict.