In injury cases involving a party with limited English proficiency, especially catastrophic injury and wrongful death cases, both defendants and plaintiffs benefit from a bilingual mediator. My basis for saying this is my own experience as a litigator and my own good and bad experiences in mediation where there were language barriers. I became a mediator in large part because of the language barriers I have encountered and the opportunities I see to address and limit these barriers in all phases of litigation, including ADR.
Before offering you three reasons to choose a bilingual mediator in an injury case, I have two caveats: (1) a mediator is not, and should not be, an interpreter; and (2) a mediator should only converse with a party with limited English proficiency in their native language with the permission and trust of the attorney – assuming it is an attorney-represented case. As for three reasons to choose a bilingual mediator in an injury case, I offer the following:
- Connection. The best mediators I have used and routinely use have an innate ability to connect with everyone involved – I look for high EQ. The connection builds credibility, especially with participants who have never been involved in litigation, much less mediation before. In my experience, the experience and age of a mediator, alone, do not translate to credibility with a party, especially one who speaks a different language and comes from a different culture. Language is a tool to help establish this connection and credibility, even if it just means that the mediator can actively listen to the party in his or her native language;
- Being Heard Matters. If a party is going to voluntarily agree to end their case without getting in front of a jury, or likely even seeing the courtroom, they are going to want to feel like someone other than their attorney has heard them. This is especially true in cases involving catastrophic injuries and wrongful deaths. People are more willing to listen and engage when they feel heard and respected.
- Reading the Room. Whether you are using a professional, licensed interpreter or a lay, unlicensed interpreter, important things can easily be missed and/or misunderstood. Interpretation is hard. The highest level of certification for a licensed, legal interpreter in Georgia requires a score of 70% on an oral examination (in three disciplines of interpretation – simultaneous, consecutive, and sight). Under the best-case scenario, up to 30% of what is being said can be missed. A bilingual mediator who also speaks the language helps to limit these misses by reading the room and understanding if there is a communication breakdown.
These are three quick reasons to use a bilingual mediator. There are countless other reasons that could be the subject of much more in-depth examination. This is a start. Of course, I hope you will choose me to help mediate your next case, especially those involving Spanish-speakers. But, more than that, I hope I am helping to increase awareness on an often overlooked and/or difficult to address barrier to justice, and I hope we all work together to develop strategies and best practices to limit these barriers and to help parties reach fair and just resolutions.