Mediation: is four a crowd?

The Linguist Published on Friday, 07 April 2017 Parent Category: News Share page with AddThis

Erik Hertog reveals the findings of a new project looking at bilingual mediators and interpreting in civil disputes

Published in The Linguist, Vol/56 No/2

Over recent decades, interpreting in criminal justice has received significant attention from academics and practitioners. However, in all 47 Member States of the Council of Europe, the number of civil cases is much higher than that of criminal cases. Although there are international, EU and national legislative safeguards underpinning similar rights in civil proceedings as in criminal proceedings – including language assistance – comments on the provision and quality of interpreting in civil cases are scanty and superficial.

In addition, both the EU and national legal systems are actively promoting methods of alternative dispute resolution (ADR).1 The reasons are clear: they relieve overburdened court rolls, and are efficient, speedy, confidential and less costly. Additionally, ADR may have the enormous advantage of solving the root causes of a conflict rather than its legalistic issues alone. Finally, civil proceedings, including ADR procedures, increasingly involve other-language speakers in national or ‘cross-border’ cases (as do proceedings in other legal domains).

As an example, approximately 15% of divorces in Germany each year concern couples of different nationalities, while hundreds of children are victims of abduction within the EU each year. It therefore seemed timely and useful to investigate a domain within civil proceedings and ADR where there is an established need and practice of interpreting: mediation.

Part-funded by the Directorate-General Justice of the European Commission, the two-year Understanding Justice project was launched in 2014 to examine this area.2 I was among the participants in this multi-party project, coordinated by Brooke Townsley at Middlesex University in London, along with colleagues at other European universities and expert advisors.

Mediation exists in civil, administrative and criminal matters, and may be initiated by the parties involved, or suggested or ordered by a court. It is quite common in national and cross-border family disputes (divorce, custody, child abduction), disputes in the workplace, schools and health care, and even in such unexpected contexts as environmental disputes or youth mediation (e.g. gangs). The mediator (an impartial person) facilitates communication between the parties, guides the conversations and monitors the process in an efficient and equitable manner, searching for a solution that is acceptable to all.

In England and Wales, in the wake of the heightened profile of mediation, the Civil Mediation Council (CMC) was established in 2003 to promote the merits of commercial and civil mediation, and to represent the interests of mediation providers. Currently, the CMC has a membership of some 70 provider organisations and 400 individual mediators. In family cases, the general approach is now that the courts should be used only as a last resort. National Family Mediation asserts that its providers deliver around 30,000 mediations in England and Wales per year, with full agreement being achieved in 83% of cases.

Bilingual mediators

Most mediation takes place in a monolingual setting, usually in the language of the legal system. But even here, the multilingualism of our societies will force itself in by the back door. When two Turkish-speaking neighbours in Belgium have a conflict and it comes to a mediation process to try and resolve the dispute, the first option will be to turn to a Turkish-speaking mediator. In Belgium, the Federal Mediation Commission lists 24 languages in which mediation can be offered. The practice has obvious advantages – time, cost, cultural rapport, ease of communication, etc – but there is no language test for these mediators. They themselves indicate in which language they feel proficient enough to work.

When parties speak different languages one hopes that the parties and mediator(s) will not all switch to a shared, though not necessarily adequately mastered, third language, nor that one party will reluctantly agree to speak the other party’s language. These options entail major risks, as one needs to express one’s emotions, expectations and nuances in a foreign language, which in the latter case involves a real power imbalance and the mediator would, in any case, have to be very wary of potential misunderstandings and the risk of unfairness to one party.

In bilingual mediation each party decides to speak their own language. Both languages are understood by all, but for reasons of accuracy and nuance, emotions and stress, or simply equality of arms, one decides to express oneself in the language in which one feels at ease and through which one attempts to assert one’s own identity and voice in the conflict. In such a situation, one or two bilingual mediators are needed, proficient in both languages, so that the whole mediation process can be conducted in the languages of the parties. The mediators do not have to interpret, nor is there a need for an interpreter. The bilingual mediation process proceeds as if it were monolingual.

In a different scenario, each party decides to speak their own language but the language of one party is not sufficiently understood by the other party. In these situations, the bilingual mediator will also have to interpret. In the case of two mediators, the bilingual mediator will need to interpret both for the other mediator and between the parties.

As a mediator relies on being able to reframe statements and invite responses to de-escalate conflict in favour of more constructive interaction, all through the means of language, it is understandable that the prospect of placing this in the hands of an unknown third party – the interpreter – whose renditions into another language, moreover, cannot be monitored, may seem unattractive. The use of a bilingual co-mediator, who can undertake the role of mediator and interpreter, appears to allow mediators to retain control of the mediation dynamics so crucial to their practice.

However, in the literature on bilingual mediation, the language issue – i.e. the degree of proficiency in both languages – is rather taken for granted. In addition, the problem of the mediator(s) also having to interpret raises concerns about cognitive overload, potential perceived preferential treatment of the interpreted party and, importantly, blurred professional roles – one bound to progress the mediation process, the other bound to reproduce faithfully whatever is voiced by the speaker(s).

Interpreters required?

Data from the Understanding Justice questionnaire, which asked mediation practitioners and organisations in the six partner countries about the practice of managing the language difference in mediation, indicate that language difference is far from rare. However, awareness of the potential complexities of working across languages and of the impact of the ad hoc methods chosen for managing language difference is low.

Thus, we return to the possibility of investigating the provision of interpreters in mediation. The question arising is whether third-party interpreting in mediation can be made a reliable option, just as it is now commonplace in other judicial activities. Language difference in mediation is likely to increase, and finding sufficient bilingual mediators is unlikely to be possible. 

Interpreting in mediation needs to be provided by qualified legal interpreters who master the whole range of legal interpreting competences.3 In addition, they need to master the specific knowledge-based competences – for instance, knowledge of the legal mediation instruments and process, an understanding of the role of mediators and of third persons, the essentials of the nature of conflict and the subject matter terminology.

Mediation sessions can be intensely stressful. In an atmosphere of anxiety, mistrust or despair, parties may be insecure and vulnerable, or downright rude and cruel. All participants – including the interpreter – are together in this process for a number of hours, over a number of days, and there is a clear risk of empathy – on the basis of the dispute, ethnicity, gender, language or whatever – with one of the parties. In mediation, legal interpreters need to maintain an exceptionally strong ethical awareness, grounded on the pillars of confidentiality and impartiality.

The most specific set of skills relates to the ability to apply, as an interpreter, the whole range of communication strategies used in mediation, such as being aware of people’s feelings, reactions, body language and vocal tones, which can be incongruent with or supportive of what is being said. The same goes for the range of linguistic strategies, for example the accurate rendering of simplifying, summarising or mitigating discourse.

Finally, as videoconferencing seems to be the most applicable technology to complement face-to-face mediation sessions, the interpreter needs to be aware that, as the communicative environment is fragmented, all aspects of the dynamics of the communication and its management are affected. Whether videoconference-supported mediation works best when it replicates, as closely as possible, the traditional face-to-face setting, or whether it is regarded as a form of dispute resolution in its own right, the legal interpreter would, in any case, need to bring on board the additional skills identified by research on interpreter-mediated videoconferencing.4

Self-assessment  

The interactive materials on the project website are for interpreters who want to prepare for assignments in mediation – to show how it differs from other types of legal interpreting – but whose access to taught courses or workshops is limited.5 These structured self-assessment exercises are designed to be worked on alone, as part of the process of individual legal interpreters setting their own objectives, reflecting on their practice, assessing how much a particular activity has met their learning needs and identifying what they still need to do.

The materials include exercises to help improve reflection on performance, video clips highlighting learning points relevant to interpreting in mediation, self-assessment and video clips of the competences required, including comments from interpreters and mediators, templates for the construction of an action plan and record keeping.

Just as the goals of mediation differ from a court-based adjudication, the communicative dynamics are different enough to require a set of additional competences. There is not, as yet, a clear understanding on the part of either mediators or interpreters of what it means to interpret in mediation and how this should be managed. The Understanding Justice project aims to take initial steps towards illuminating the challenges involved.

For the full text of the project findings, ‘Understanding Justice: An enquiry into interpreting in civil justice and mediation’, see www.understandingjusticeproject.com.

Professor Emeritus Dr Erik Hertog taught Cultural Studies and both Conference and Community Interpreting at KU Leuven, Antwerp Campus (formerly Lessius University College). He has been involved in several EU projects on access to justice across languages.

Notes

1 ‘Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on Certain Aspects of Mediation in Civil and Commercial Matters’; eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:32008L0052
2 JUST/2013/CIV/AG/4684; www.understandingjusticeproject.com/assets/uj_report.pdf
3 As described in the Building Mutual Trust 1 project; www.buildingmutualtrust.eu
4 See the Avidicus projects; wp.videoconference-interpreting.net/?
5 See the Understanding Justice online self-assessment tool; understandingjusticeproject.com/assessment

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