TEXAS ASSOCIATION OF MEDIATORS
2006 ANNUAL CONFERENCE

“USING INTERPRETERS IN MEDIATION”

 

BERNARD DANG NGUYEN
(CHS Phan Thanh Giản Đà Nẵng)

ARBITRATOR/MEDIATOR/INTERPRETER

 

PAXific Dispute Resolution Center
12225 Greenville Avenue, Suite 700
Dallas , Texas 75243

Ω

February 24-25, 2006
Austin Marriott at the Capitol
701 East 11th Street , Austin, Texas

      

If the definition of MEDIATION is “aprocess during which an impartial, neutral person, the mediator, facilitates communication between the parties in a dispute to assist reconciliation, settlement, or understanding among them,” then a Mediator should be an expert in terms of communication (oral, written, implied and body language,) to and for the disputants. But picture a situation where the Mediator does not speak, read or write the language of the disputants, does not understand the nonverbal communication and culture inherited by disputants, does not understand the sensitivities of the participants in the mediation process. Then mediation becomes a useless tool. The process would not bring about any fruitful outcomes, resulting in unresolved disputes and leaving the non-English speaking disputants with an unsatisfactory and bitter experience.

Mediation is a purposeful technique to bridge communication gaps. But when a mediator cannot communicate directly to disputants or look straight into the disputants’ eyes and create trust, confidence, and good rapport, she/he would necessarily rely totally on an outside interpreter. The mediator cannot facilitatethe communication and know whether the interpreter’s words (English) truly reflected what the disputants meant if she/he does not speak the target language. Can the mediator qualify the interpreter if she/he cannot understand a word of disputants’ native tongue? When a mediator uses an interpreter, she/he would not be able to know whether the interpreter is biased against one party and sympathetic to another. When a mediator does not acquire the principle and techniques of interpretation/translation, could she/he ever be sure that the interpreter truthfully and accurately performs his/her duty as a professional interpreter?

“Without communication there is no negotiation…. When the parties speak the different languages the chance for misinterpretation is compounded.” ( Getting To YES-Fisher)

I. The Law:

There are many changes since the article “Translating Justice” written by Utpal P. Mehta was published in Texas Bar Journal in October of 1994. Effective September 1, 2001, any one wanting to be an interpreter must be licensed by the Texas Department of Licensing and Regulation (TDLR.) Nevertheless, there’s a “grandfather clause” allowing application filed before January 1, 2002 proving that the applicant “has practiced as a court interpreter prior to September 1, 2001 and stating that if the applicant wishes to become licensed without examination, the applicant must:

1. Attach to the application a written and signed reference from an officer of a court, stating that the applicant has acted as a court interpreter in that court and demonstrated proficiency in interpreting in a specific language, (condition 1)

Or:

2. Attach to the application the results of a court interpreters’ examination passed within the two years preceding the application.” (condition 2)

Many applicants took advantage of the “condition 1” and immediately solicited a recommendation letter from an officer of the court, particularly a judge, to satisfy the TDLR’s requirement to obtain a court interpreter license. Many of applicants have never been trained in even the fundamentals of interpretation/translation. Currently, if a licensed court interpreter is asked to take the oral examination which requires one to perform “simultaneous interpreting of an attorney’s opening or closing statement from English into foreign language” and she/he fails this oral test, definitely those license holders’ quality of court interpreting services are seriously questionable.

A licensed interpreter is not mandated to possess knowledge of local culture, tradition, regional dialects, and colloquial expressions of the disputant/litigant’s language, which are major factors for being a competent interpreter . One of the most crucial elements in determining a competent interpreter is his/her cultural competency.

As Mehta states, the judge “wrongly assumed that judge can accurately determine the competency of a particular interpreter.” He adds “a judge who is not fluent in the particular source language cannot be expected to independently determine the interpreter’s ability to accurately translate from the source language .” And Mehta emphatically emphasizes that “the interpreter’s experience in previous court proceedings does not guarantee competency since court interpreters “tend to repeat the same crucial misstates.”

II. Does an interpreter for mediation session need to be licensed?

Yes, according to the TDLR, mediations, arbitrations, administrative hearings, civil and criminal trials and depositions are considered court proceedings which require the interpreters having a license to serve. Nevertheless, this law does not apply to federal courts.

It’s not clear whether mediations taking place before the filing of a law suit are to be considered court proceedings or not. Since mediation is definitely a part of the legal proceeding, should the interpreter be administered the oath? If yes, who will administer the oath to the interpreter if the parties don’t have legal counsel (officer of the court,) court reporter or even a Notary Public present at the mediation session? And if the mediator is not considered an officer of the court, then who would be able to administer the interpreter’s oath?

III. Interpreter’s Qualification:

Texas Rules of Evidence considers the qualified interpreter as an “ expert.”

American Disabilities Acts (ADA) defined that “qualified” interpreter can interpret effectively, accurately, impartially and expressively.

Indeed, a competent interpreter must be resourceful in sight translation, consecutive and simultaneous interpretations; thoroughly understand interpreting techniques, ethics, procedure, protocol and, most importantly, cross-cultural diversity/multicultural awareness. A qualified interpreter should be directly trained in interpreting techniques, skill-development, translation-interpreting analysis, critiques, and preferably he/she will have acquired subject matter expertise and cross-cultural competence.

An interpreter holding a “Licensed Court Interpreter” license does not guarantee that s/he is a competent interpreter. Most of the courts and legal counsels are mainly concerned about the interpreter’s knowledge and language of law and/or mediation rather than technology, science, business, finance, medicine or culture etc., and fail to investigate whether the interpreter retained for the assignment is knowledgeable about the subject matter in particular and the specific culture of the non-English-speaking party.

There are very few interpreters who can serve in all the above-mentioned fields. Some cannot even perform simultaneous interpreting, and some even fail to keep neutral by sympathizing with one or the other disputant. And, no matter how precise the interpretation is, the interpreter often cannot deliver the nuances and emotion at the same level of the original speaker. This is a universal problem when English is not the language of the disputant.

If an interpreter is requested to interpret in a medical malpractice law suit, dispute, deposition or mediation, that interpreter should be knowledgeable with specialized terminology in physiology, anatomy, forensic pathology, major diseases, medical document translation and surgical procedures-equipments. Even acquisition of only the described specialized terminology is not sufficient; one should know lay people’s common uses of these specialized terms.

An interpreter who has been working in the field of interpretation for three, five, ten or twenty years is not necessarily a qualified interpreter. Interpreters who have joined national interpreter associations by choice neither prove nor indicate their interpreting competency. No national interpreting/translating association tests an applicant before accepting them into their association. Some very concerned litigants and mediators request testing of the interpreter’s ability to do simultaneous interpretation prior to a mediation session; but very few, if any, mediator/litigants have real working knowledge of the target language (disputant’s native language), be it Spanish, Vietnamese, Mandarin or any other.

The interpreter’s length of living in the United States or his/her level of education background won’t guarantee his/her competency in interpreting assignments. A linguist is not an interpreter. A translator is not an interpreter. A person who claims that he/she can speak more than one, two or three languages is not necessarily an interpreter. A trained interpreter is more than a “neurological-physiological performer,”

Friends and relatives of disputants frequently come to mediation session not with the purpose of being interpreters, but rather to be witnesses or emotional supports. Their presences alone are enough to create an imbalanced power atmosphere, causing the opposing party to feel intimidated and/or hesitating to have an open dialogue. If family members come and function as informal interpreters they tend to be cheerleaders, advocates, not binding to the rules of ethical and professional conduct, and confidentiality. Rarely can they be impartial and neutral participants.

IV. Cultural Dynamics and Gender Sensitivities:

Many times, the disputant’s religion, race, culture and gender sensitivities are disregarded by most of legal counsel and mediators in dealing with a non-English speaking party. The hidden agenda sometimes is the main cause for the conflict. It is insensitive to have a male interpreter in a criminal proceeding where the sexually-assaulted victim is a female. A female complainant would be uncomfortable in expressing her apprehension to a male interpreter for a sexually-alleged complaint. The interpreter is not retained to be a psychological or cultural advisor. It’s the duty of the advocate or mediator to identify and recognize the sensitivities and dynamics of culture and gender in the conflicts and disputes.

Human thought processes and feelings are extremely complex, and all language is exceptionally intricate. It is of the utmost importance (and a massive undertaking) to understand thoroughly the essential mental processes, non-verbal paralanguage, body language, cultural intricacy that even a competent interpreter needs to perform the task of delivering an accurate message. A single example of courteous or polite body language from one culture could be considered obscene or offensive to another culture. One gesture may be appropriate for one gender, but may be outrageous to the other. These cultural, gender and psychological differences tend to bar the mediator from receiving the accurate message or intention of either or both of the disputing parties. It is absolutely necessary to avoid any joke or comment about religion, race and personal appearance.

Today, more advocates prefer to use video deposition rather than stenographic deposition. Why? Because video will convey the witness’ body language… all pauses, nods, shrugs, gestures, mumblings, eye and hand movements, facial expressions, and hesitancies are vividly shown. Jurors could form opinions or judge the witness’ testimony a great deal more accurately through recorded appearance and non-verbal expression. This attribution is absolutely not interpreted by even a competent interpreter. In many events, body language can speak volumes, and not many people can read such languages.

The personality and behavior of the interpreter can often contribute a great deal to the success of mediation. A cross-culturally-competent interpreter’s courteous gesture and professional conduct toward the disputed parties would help to secure the disputants’ self-confidence in the mediation process, and just as importantly give the mediator and disputants a mutually respectful sense of liaison. But who is to judge the effectiveness and impartiality of the interpreter? There is no established guideline for such testing.

 

V. Confidentiality:

Confidentiality is the most important prong is mediation besides swiftness, cost-effectiveness and casual elements. Some disputants refuse to use certain interpreters, possibly eminent members of their community, because they either want to “save face” or don’t want their personal matters leaking to the community in which they live. Even the most qualified interpreter, who conducts herself/himself strictly within the professional code of ethics, might slip, under the pull of community chatter, not to mention the untrained interpreter who has no knowledge of professional conduct or ethical considerations.

A female party often prefers or at least feels more comfortable with a same-gender interpreter in a law suit or disputes related to domestic relations, women’s illnesses or personal matters, and absolutely in matters concerning physical and sexual abuses, when there is a definite cultural bias based on gender roles.

To assure that the licensed interpreter abides by the professional standards of conducts, a mediator must provide him/her with a copy of an interpreter’s code of ethics or professional conduct, require him/her to read these rules and review and monitor the interpreter to make sure he/she understands and abides by what he/she’s just read.

VI. How To Work With Interpreters?

A competent interpreter is a professional and independent language expert whose performance is neither influenced by advocate nor mediator. When s/he takes the oath to interpret the proceeding, s/he is obligated to interpret precisely to-and-from the target language during the entire proceeding. She/he is responsible for interpreting all that is said faithfully, without any deviation. The role of the interpreter is not to make the disputant’s angry statement heard comfortably nor gently by the opposing party or the mediator. It’s unethical for a competent interpreter to alter, rephrase, or substitute or modify a party/witness’ offensive expression for one that is pleasant or auspicious.

As part of legal proceeding, the interpreter is advised NOT to intermingle with disputants before they are introduced by the mediator. But with non-English-speaking disputants, this makes the interpreter seem something like an appointed officer of the court, and therefore a hostile combatant. The disputants (both sides) may therefore be guarded, neither willingly, actively, nor even objectively participating in the process. It would be better for the interpreter to have the opportunity to introduce him/herself to BOTH sets of disputants, informally, to establish his/her identity as a neutral party having no interest in the outcome of the case. This could put both disputants at considerably greater ease.

 

Conclusion:

The interpreter/translator is the most useful language-service provider in any proceeding, including mediation sessions. However, the interpreter cannot be presumed to be expert in all subject matters and his/her knowledge about the subject, culture, interpreting skill and professional conducts must be verified and constantly monitored to assure the professional service intended for the mediation involving the particular non-English speaking party. The interpreter’s knowledge of criminal or civil trials is different from a mediation session. His/her knowledge of legal terminology and court protocol is completely different from other financial, technology or medical mediation sessions.

When facing the possibility of a concern about the interpreter’s competence and his/her professional service in a mediation session, most of veteran mediators and advocators zealously support the choice of having a co-mediator who is competent in the culture and language of the disputant. Ultimately, the mediator who acquires knowledge of the cultural history, understands the sensitivity of gender and is knowledgeable about the subject in disputes is the most appropriate mediator for the case.

Copyright©2006 by Bernard Dang Nguyen

 

References:

1. Utpal P. Mehta , Translating Justice, T.X.B.J., Vol. 57-October 1994, 1004-1007

2. Grabau, Charles M. & Gibbons, Llewellyn J. “Protecting the Rights of Linguistic Minorities: Challenges to Court Interpretation ”

3. Fred Butler , When Should Race, Gender Or Culture Be A Factor When considering The Mediator? www.mediate.com/FredButler

4. Texas Department of Licensing and Regulation, License Court Interpreters Government Code, www.license.state.tx.us/court/lcilaw.htm

5. License Court Interpreters Frequent Asked Questions, www.license.state.tx.us/court/lcilfaq.htm

6. Josefina M. Rendón, Mediating With Interpreters, T.X.B. ADR Section, Vol.13, No.4, Josrendon@aol.com

7. Fisher, Ury and Patton, “ Getting To YES: Negotiating Agreement Without Giving in” (3 rd Edition. Penguin Group)

8. ACR Mediation Rules (www.acresolution.org)

9. The Judicial Council of California-Court Interpreter Certification Division. Fact sheet.

10. R. D. Gonzalez , “ Fundamentals of Court Interpretation: Theory, Policy, and Practice” (1991)

11. H.R.2497, “ Administrative Dispute Resolution Act.”, Public Law No.101-552

12. Federal Mediation Conciliation Service (FMCS)