“One of the best ways to persuade others is with your ears – by listening to them.” – Former Secretary of State Dean Rusk
In a 2014 TED Talk “The Power of Listening,” William Ury posed a simple question that is fundamental to negotiation and all human interaction, “if a person speaks … and no one listens, is that really communication?”1 He stresses the importance of listening to understand opposing viewpoints, to build connection and rapport, and to encourage your adversary to listen to you. He also stresses how often we take listening for granted and how difficult it really is. In the context of language barriers in mediation, I would pose this corollary question, “if a person speaks and does not feel listened to or heard, are they really a part of the conversation?” This corollary question should matter to mediator and participant alike every time a mediation involves both English-speaking and limited English proficient parties.
Mediation, at its core, is a conversation facilitated by an impartial neutral with the goal of helping the parties reach a negotiated resolution of their dispute(s). Facilitating that conversation with the full engagement and participation of parties who speak different languages is a challenge even if you are fortunate enough to work with a qualified interpreter – if you can get one. By way of example, in Georgia, there are approximately 340,000 people over the age of 5 who speak Spanish in the home and speak English less than “very well.”2 In contrast, there are currently 108 Spanish-language interpreters who have attained the highest level of certification from the Georgia Supreme Court Commission on Interpreters, which requires a passing score of 70% on a battery of tests.3 This means that there is roughly 1 certified interpreter for every 3,148 Spanish-speaking Georgians who speak English less than very well, and if you are fortunate enough to have one of these interpreters available for your mediation, up to 30% of what is being said will be missed. If you are using anyone else as an interpreter, which is very likely, it is a gamble as to how much of the conversation may or may not be missed. Having an interpreter is an important first step in addressing a language barrier, but it may provide a false sense of security that the party with limited English proficiency has been fully informed and engaged in the conversation. As George Bernard Shaw observed, “the greatest problem in communication is the illusion that it has been accomplished.” I wonder and worry how often we assume we have addressed or overcome a language barrier when it has merely been side-stepped or worse, ignored.
A bilingual mediator is not an interpreter, and our primary benefits to all participants to a mediation are not so much in what we can say but in what we can do – we can listen directly. We can listen to build connection and rapport and to ensure the accuracy of the interpretation – I once caught an error in the interpretation of the final settlement amount being offered, which would have been much more difficult to untangle if it had not been caught in the moment. Most importantly, we can listen to help the party with limited English proficiency to feel heard and engaged in the conversation. I would argue that in any mediation the mediator’s ability to listen and make the parties feel heard and understood is more important than any other single characteristic of the mediator. “People listen better if they feel you have understood them. They tend to think that those who understand them are intelligent and sympathetic people whose opinions may be worth listening to.”4 In my experience, listening begets listening, which in turns leads to a productive conversation and negotiation. Or as William Ury observes, “listening may be the cheapest concession we can make in a negotiation. It costs us nothing and it brings huge benefits. Listening may be the golden key that opens the door to human relationship.”5
Qualification and subject matter expertise certainly matter when choosing a mediator. The mediator must have the knowledge base to facilitate a productive conversation and qualification and experience necessary to be trusted by the parties. But the mediator’s ability to listen actively and directly should always be a paramount consideration when choosing a mediator. When one party has limited English proficiency, a mediator who can listen to them directly in their native language is incredibly valuable towards the end goal – helping the parties get to resolution and closure in their dispute.
4 Roger Fisher, Getting to Yes: Negotiating Agreement Without Giving In