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<xTITLE>The Civil Rights Act of 1964: The Right to Bilingual Mediation</xTITLE>

The Civil Rights Act of 1964: The Right to Bilingual Mediation

by Patrick Mastronardo
September 2021 Patrick Mastronardo

The Mediator Ethics Advisory Committee (MEAC) provides written advisory opinions to mediators concerning interpretations of the Florida Rules for Certified and Court-Appointed Mediators (Florida Rules) and guidance on standards of conduct, consistent with The Long-Range Strategic Plan for the Florida Judicial Branch, 2016-2021 (Administrative Order No. AOSC20-69).

Citing a report that interpretations of MEAC Opinions 2011-017 and 2014-004 have had a negative effect upon the practice of bilingual mediation, a certified mediator submitted the following question to MEAC.  

“Are mediators prohibited from conducting bilingual mediations in Florida and, if not, is writing the original version of an agreement in one of the languages used in a bilingual mediation prohibited?”

Opinion 2011-017, states “a mediator is prohibited from taking on the dual role of mediator and interpreter or translator”.

 Opinion 2014-004, states “if conducting a mediation in a language common to all the parties and the mediator, it is improper for a mediator to memorialize any agreement in a language other than the one in which the mediation was conducted”.

As an answer, a unanimous Opinion 2021-002 stated mediators may (1) conduct bilingual mediations and (2) write an agreement in a language requested by the parties if the mediator is able to write in the language requested and as long as that language was used in the mediation.

2021-002 provides added confirmation of a right that exists not only under the Florida Rules but also is protected by the First Amendment regardless of the languages spoken. Innumerable Floridians are bilingual mediators and prospective bilingual mediation parties possessing the capacity to fully understand all written and verbal bilingual mediation communications. They regularly have participated in mediations without acting as interpreters or translators and, with all the mediation participants similarly bilingual, they have an indisputable right of self-determination. It is an ethical bilingual practice under the Florida Rules.

Confusion relating to bilingual mediator ethics in Florida shall endure so long as it is politically incorrect for a mediator to ask MEAC the question of why it never has applied Title VI of The Civil Rights Act of 1964 (the Act) or has not modified, 2011-017 and 2014-004.

The definition of a limited English proficient (LEP) person is in the Act.  The 2021-002 Opinion omits consideration of LEP persons as mediation participants and omits mentioning that Florida Rule 10.520 requires compliance with statutes. To avoid any reference to the Act, the question asked in 2021-002 is negative in form; are mediators prohibited etc.

2021-002 sheds no light on the Florida standard of bilingual mediator conduct. Without a change in MEAC mindset, its duty to provide bilingual mediators guidance on standards of conduct is compromised. The last paragraph of the Dissent to related MEAC Opinion 2014-009 accurately forecast the chilling effect that Opinion 2011-017 has had upon an understanding of the proper role of bilingual mediators; the basis of a mediator’s question in Opinion 2021-002 https://www.flcourts.org/content/download/216833/file/MEAC2014-009FinalSigned.pdf .

It is the responsibility of The Judicial Branch to interpret the U. S. Constitution and laws; that includes the Act enacted to protect LEP persons. The Act gives the U. S. Department of Justice (DOJ) the authority to direct The Florida Judicial Branch to provide LEP persons meaningful access to court ordered mediation programs and to impose sanctions for non-compliance. DOJ has not requested each state require continuing legal education (CLE)  of the Act. https://www.lep.gov/find_courts_ltr_081610.pdf

The mission of the Florida Judicial Branch is “justice in Florida will be accessible, fair, responsive, and accountable”. Mediators and attorney-mediators supplying mediator services in the Ninth Judicial Circuit are required to sign a contract agreeing to comply with the Act and to remain liable for any violation. The same may be true in other judicial circuits.

The question of mediator liability for non-compliance with the Act and for violation of a mediator’s contractual obligation to the Judicial Branch is mentioned in a comprehensively informative December 2018 article published in Mediate.com https://www.mediate.com/articles/mastronardo.florida-right.cfm . The January 2019 edition of The Neutral, the newsletter of the Florida Dispute Resolution Center, states “The [Florida] Bar has no authority to discipline lawyers when they are acting in the role of mediator” https://www.flcourts.org/content/download/523527/file/the-neutral-january-2019.pdf , page 3 of 13.

The law establishing absolute judicial immunity ought to be re-visited; consider the leading case of Stump v Sparkman, 435 U. S. 349 (1978). That case involved an Indiana judge who in 1971 signed an ex parte order granting the petition of a mother to have her “somewhat retarded” 15 years-old daughter sterilized. Without a hearing or citing statutory authority, the judge signed the order on the same day the petition was received. The daughter was not furnished any notice, was not represented at the proceeding, and a guardian ad litem was not appointed. No record of the case or proceeding was filed with the clerk of the court; therefore, the daughter would never have an opportunity to appeal. One week later, being told she was having her appendix removed, the daughter entered a local hospital where a tubal ligation was performed on her. Two years later, the daughter married and failing to conceive a child, eventually learned she had been sterilized. The daughter and her husband sued the judge and others associated with the surgical sterilization, The United States Supreme Court in a 5-3 decision decided the judge had absolute judicial immunity. This decision tells us, without exception, in the interest of justice, open dissent must remain an essential component of every judicial proceeding. Likewise, during every mediation conference, the mediator must be a guardian of the process.

This entire commentary is summarized in a nutshell by reading the last paragraph of the Dissent to
MEAC Opinion 2014-009 and the third paragraph Question in Opinion 2021-002. MEAC opinions do not address the issue of bilingual mediations. The interpretation of the Act is the responsibility of The
Judicial Branch and not MEAC. For the sake of clarity and to ensure bilingual mediator compliance with
the Act, following seven years of controversy, let us look to vigorous support from The ADR Section of
The Florida Bar.

Biography


Patrick J. Mastronardo, Esq. is a Florida Supreme Court certified Circuit Civil, Family, County, Dependency, and Appellate mediator, qualified as an Arbitrator in the State of Florida,  and a former member of the Florida Supreme Court’s Mediator Ethics Advisory Committee [2009 thru June 2017]. Mr. Mastronardo also is a retired member of the New York Bar, and a former Wall Street commercial banker, chief corporate financial officer, and international business owner. He is a graduate of Fordham University School of Law.



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