Florida Court Ordered Mediation with a Limited English Proficient (LEP) Party
Since 1994, in response to ethical questions of mediators, The Mediator Ethics Advisory Committee of The Florida Supreme Court (“MEAC”), governed primarily by The Florida Rules for Certified and Court Appointed Mediators (“The Florida Rules”), has been providing written advisory opinions to mediators. MEAC Opinions, which permit a dissenting view, are a very valuable resource to the profession of mediation. This commentary is an attempt to focus on important dissenting views in a constructive and direct manner.
MEAC Opinions 2011-017 and 2014-004 applied without qualification set forth an unreasonable ethical standard of mediator conduct. The two Opinions may be viewed favorably only in a perfect world. In addition to this unrealistic perspective, MEAC declines to accept responsibility under Rule 10.910 of The Florida Rules to provide comprehensive advisory Opinions to ensure mediators understand and comply with legislative and judicial authority. The two unqualified Opinions deny a limited English proficient (“LEP”) party meaningful access to Court ordered mediation programs and create impediments to the practice of bilingual mediation. As a result Family Court mediation referrals of dissolution of marriage cases with an LEP party routinely contradict the two MEAC Opinions. In every area of court ordered mediation, the two MEAC Opinions tend to discourage mediators who creatively seek to preserve the opportunity for equal justice. To better understand the overall situation, let us look at the MEAC Opinions, applicable federal legislation, and Florida judicial practice and policy. MEAC Opinion 2011-017 states “A mediator is prohibited from taking on the dual role of mediator and interpreter or translator……………Whether or not the ……. [mediation]…..program should provide interpreter or translator services is a legal and contractual question and beyond the jurisdiction of the MEAC. The MEAC notes, without providing any opinion on whose responsibility it is to provide the service, that interpreters may at times be required under the Americans with Disabilities Act’”.
MEAC 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”.
Title VI of the Civil Rights Act of 1964 (“The Civil Rights Act”) prohibits discrimination based on national origin in Court ordered mediation programs, 42 U.S.C. 2000d (2012). This aspect of The Civil Rights Act is established Florida judicial policy. It is expressed in the Supreme Court of Florida’s Commission on Trial Court Performance and Accountability, Recommendations for the Provision of Court Interpreting Services in Florida’s Trial Courts p34-36 (2010). The Civil Rights Act requires the judiciary to take reasonable steps to ensure LEP persons have meaningful access to Court ordered mediation programs. Under The Florida Rules”, LEP parties possess the right to self-determination (Rule 10.310(a)).
Florida Supreme Court Administrative Order AOSC09-19 (“AOSC09-19”) comprehensively outlines standards of operation and best practices to promote equity and uniformity in court-connected mediation programs (Alternative Dispute Resolution Services in Florida’s Trial Courts. Admin. Order No. AOSC09-19 (2009). The Family Court in each judicial circuit is permitted to employ an Alternative Dispute Resolution (“ADR”) Director and to engage contract mediators.
The Florida Rules of Judicial Administration require compliance with The Civil Rights Act and, in exceptional circumstances, allow for the appointment or retention of an interpreter lacking formal approval or certification as an interpreter. Fla. R. Jud. Admin. 2.560(d), 2560(e)(3), 2.565(c). The Florida legislature declines to provide the amount of funding that is requested by the judiciary. Due to budgetary constraints, the judiciary does not allocate funds to Family Court mediation programs to provide an LEP litigant a formally qualified interpreter free of cost [See Fla. R. Jud. Admin. Rule 2.560(b) of (2018). To offset this deficiency, the Chief Judge [or designee] in each judicial circuit has the authority and the power to do everything necessary to promote the prompt and efficient administration of justice. Fla Stat. 43.26(c) (2017).
AOSC09-19 authorizes judicial circuits to enter into individual written contracts with each family mediator wherein he/she must agree to comply with The Civil Rights Act and to satisfy the minimum performance standards of the ADR Director of the local Family Court. In dissolution of marriage cases with LEP litigants, contract mediators are trained to be sensitive to social and cultural diversity and aware of the inherent difficulties of mediating without a formally qualified interpreter. Contract mediators are paid by the State of Florida. Divorcing parties qualify for a Family Court mediation program with contract mediators if their combined annual income does not exceed $100,000. The parties must file financial affidavits and pay a modest mediation fee to the Clerk of the Court prior to mediation. Indigent parties pay no fee.
There is no statewide Florida Family Court standard governing the referral of dissolution of marriage cases with an LEP litigant to a contract mediator. Some local Family Courts may have greater ability or support to contract with an independent professional interpreter. The common referral procedure is stated herein. Unless otherwise agreed, a dissolution of marriage case with an LEP litigant fluent in a language for which the Family Court has a bilingual contract mediator [e.g., Spanish], shall be assigned to that mediator to conduct mediation in the language of the LEP litigant [e.g., Spanish] without an interpreter. The parties may be pro se or represented by counsel who may or may not be bilingual. The parties may bring a person to mediation to act as an interpreter but usually do not bring an interpreter.
If an LEP litigant speaks a language for which the local Court does not have an available bilingual mediator, the Court may assign the mediation to an English speaking mediator and order the parties to select a person to act as an interpreter. As a matter of interest, in a recent marriage dissolution case, after re-scheduling mediation, a pro se LEP litigant appeared a second time without selecting an interpreter. A judge shall decide the disposition of that case. Typically, the parties select a person who is a relative or friend with no formal training as an interpreter. An untrained person cannot satisfy the standards of a professional interpreter as prescribed in The Florida Rules for Certification of Spoken Language Court Interpreters, Part III Code of Professional Conduct 2016 (“Interpreter Code of Professional Conduct”). A mediation conference utilizing an untrained interpreter may be a daunting challenge. The participation of an attorney for a party who is fluent in the language of the LEP litigant may be an added challenge. If an English speaking contract mediator is unable to control and maintain an effective means of mediation communication or if the performance of the selected interpreter is not credible or is biased, the mediation conference shall be terminated [Florida Rule 10.420(b)(4)]. Before commencing mediation, a mediator may wish to provide an untrained interpreter with a brief explanation of the interpreter role.
The contract mediator must ensure a mediated agreement is memorialized in English for filing with the Family Court, being aware the LEP litigant may be unable to read the written agreement he/she shall be asked to sign. Before a signing of the mediated agreement, if no interpreter is participating, the bilingual mediator may wish to verbally translate it word by word or in a style best understood by all parties. However, if there is an interpreter participating, the English speaking mediator may wish to read the agreement and have it simultaneously interpreted by the interpreter. This would twice ensure informed consent when you have a pro se LEP litigant. The terms of the signed mediated agreement requiring approval by the Court may state that such translation or interpretation took place. Local Family Court mediation programs place a time limit of either two or three hours to complete the entire mediation process. Despite any ambiguity in the Court referral order, the mediator must satisfy his/her personal contractual agreement to comply with The Civil Rights Act by taking every reasonable step to provide an LEP litigant meaningful access to court ordered mediation. MEAC, by citing Florida Rule 10.520, Compliance with Authority, in its Advisory Opinion 2012-005, provided a precedent, albeit flawed, for such mediator conduct not expressly directed but clearly intended.
Opinion 2012-005 states a certified Florida mediator in a Bankruptcy Court ordered mediation may comply with a local rule of the Bankruptcy Court to disclose a party failed to negotiate in good faith. The Bankruptcy Court local rule was woefully ambiguous. Opinion 2012-005 acknowledged such disclosure by a mediator is inconsistent with confidentiality and contrary to Florida case law, Avril v. Civilmar, 605 So. 2d 988, 989-990 (Fla. 4th DCA 1992). To rise to the occasion, without direction from MEAC, mediators individually and collectively had to determine the actual intent of the local rule based on their experience with the Court, sound judgment, and analysis. Mediators then correctly concluded the Court never intended to impose an affirmative duty upon the mediator to dig into all the facts and ferret out whether the parties were acting in good faith. Mindful thereof, mediators still had to determine how to comply with the local rule. An analysis of that process is discussed in an article titled “The Challenge of Good Faith Mediation in Florida” published in The Dade County Bar Association “Bulletin”, April 2013 issue, and other media. At a later date, The Bankruptcy Court changed its local rule to remove the issue entirely. Still, this issue of mediation in good faith arises in other mediation programs required by statute.
Experience indicates that pro se and legally represented LEP litigants readily accept the Family Court referrals to contract mediators. The litigants and their legal counsel are permitted to express a preference for a particular contract mediator. Pursuant to Florida Rule 10.420(a) and to provide transparency, a contract mediator’s opening statement shall provide the participants with a full understanding of the role of the mediator, the mediation process, confidentiality, and the terms of the Court referral to mediation.
Parties competent in the same two languages, one of which is English, may appoint a private mediator fluent in their two common languages. In that circumstance, MEAC Opinions 2011-017 and 2014-004 are not applicable. Why? Mediation communications shall be understood by all participants, a mediator is not an interpreter or translator, and a mediator may memorialize an agreement in English even though mediation had been conducted in the second common language (Florida Rule 10.310(a), Self-Determination). In the distinguishable scenario of 2014-004 the language commonality of the parties was limited to Spanish.
Two subsequent MEAC Opinions merit special attention. Firstly, Opinion 2017-002, dated December 2017, published without mention of dissent, once more stated to maintain freedom from the perception of favoritism or bias (impartiality), avoid the improper supply of unrelated services (a conflict of interest), and to conduct mediation in an even handed manner “consistent with MEAC Opinions 2011-017 and 2014-004, a mediator shall not perform the dual role of a mediator and translator or interpreter”. Opinion 2017-002 did not cite the two Dissent Opinions to 2014-004, the flawed Opinion 2012-005 which recognized a mediator’s obligation to comply with authority, and the highly relevant Dissent Opinion to 2014-009. The majority Opinion in 2014-009, with limited facts, provided a negative response to the question of a trainee for mediator certification (most likely in County Court) as to whether he/she, as an observer of mediation, with consent of the parties, may act as an observer and translator or interpreter and receive mentorship credit therefor.
Secondly, Opinion 2017-021, dated June 2018, which relates to the mediation of a small claims case wherein the plaintiff’s attorney appeared telephonically and a deaf pro se defendant appeared personally. The mediator’s question was whether, with the consent of the parties, to facilitate mediation communication between plaintiff’s attorney and the deaf pro se defendant, he/she may repeat telephonic statements made by plaintiff’s attorney in a manner enabling the deaf defendant to read the mediator’s lips. The inquirer did not mention that a deaf pro se defendant is an LEP person protected by The Civil Rights Act and the Mediation Guidelines of the Americans with Disabilities Act (42 USC Sec.12101-12213. In response, MEAC Opinion 2017-021 stated “consistent with MEAC Opinion 2017-002, a mediator shall not perform the dual roles of mediator and oral interpreter for a deaf party”. Opinion 2017-021 appears to contradict Opinion 2011-017 which incorrectly states it is beyond the jurisdiction of MEAC to opine on the issue of who may act as an interpreter under the Americans with Disabilities Act (see quote in third paragraph of this commentary).
As similarly observed in the Dissent Opinion 2014-009 scenario, MEAC Opinion 2017-021 does not consider all possibly relevant facts and does not raise pertinent questions. A deaf LEP party has the right of self-determination and, at a minimum, is entitled to meaningful access to the mediation process. Small claims cases often relate to credit card debt collection where, without the prior knowledge of a pro se defendant, attorneys for the plaintiff often obtain prior court approval to appear telephonically. In 2017-021, did plaintiff’s attorney appear telephonically without prior knowledge of the deaf defendant and thus create the core issue at hand? Did the deaf defendant provide prior notice of his/her disability to the Court? Was the Court able to provide the deaf party an alternate means of mediation communication at the time? Regardless of the answers to these questions, personal experience has demonstrated that circumstances could arise in small claims court cases where, in the interest of timely justice and consent of the parties, a mediator may act as an “oral interpreter” either with or without the approval of an ADR Director or a judge.
Mediators and trainees for mediator certification who comply with The Florida Rules have immunity in the same manner and extent as a judge [Section 44.107(1), Florida Statutes]. A judge has immunity when his/her decisions are in error and reversed. The profession of mediation in Florida would benefit from a clarifying MEAC advisory opinion stating mediators making the decisions described herein are in compliance with Florida Rule 10.520, Compliance with Authority, and have immunity in the same manner and extent as a judge.
The continuing mediator education (“CME”) requirement for Florida Supreme Court certified mediators that directly relates to the purpose of The Civil Rights Act is one hour of diversity/cultural awareness education in each two year renewal cycle (Florida Supreme Court Administrative Order AOSC11-1). This is inadequate CME training to sharpen a mediator mindset able to instantly recognize when, where, and how The Civil Rights Act applies.
The appropriate Florida Supreme Court committee(s) may wish to consider the merit of two suggestions. The first is to require additional CME training to enable a mediator to immediately recognize when there is a need to apply The Civil Rights Act and/or the Mediation Guidelines of the Americans with Disabilities Act. The second suggestion is to modify the standards of operation and best practices to promote equity and uniformity in court ordered mediations when conducted by an English speaking mediator with an LEP litigant (as contemplated by AOSC09-19). Determining the best means to maintain judicial compliance with The Civil Rights Act is a continuing process and a debatable issue in each state (see Justice Department Guidance Letter to State Courts dated August 16, 2010).