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<xTITLE>Mediator Ethics: The Quest for Justice LEP Litigants and Bilingual Mediation</xTITLE>

Mediator Ethics: The Quest for Justice LEP Litigants and Bilingual Mediation

by Patrick Mastronardo
June 2018 Patrick Mastronardo

The Mediator Ethics Advisory Committee of The Florida Supreme Court [MEAC] Opinions 2011-017 and 2014-004 mandate an unqualified ethical standard of mediator conduct that is unsound and inconsistent with the administration of justice. Literally applied, the two opinions would disregard legislative and judicial authority; deny a limited English proficient [LEP] litigant meaningful access to civil court ordered mediation programs; and create impediments to the practice of bilingual mediation. Let us examine the facts.

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

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. This aspect of The Civil Rights Act became Florida judicial policy as clearly expressed in “Supreme Court of Florida, Commission on Trial Court Performance and Accountability, 11/1/2010, Discussion p 34-36”. Florida Courts have taken reasonable steps to ensure LEP persons have meaningful access to civil court ordered mediation programs. As more fully described herein, the voice of LEP litigants and their right of self-determination are protected as mandated by Rule 10.310(a) of The Florida Rules for Certified and Court-Appointed Mediators [The Florida Rules]. In 2014, LEP persons represented 11.69% of the population of Florida [https://www.lep.gov/maps/]. 

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. It states each judicial circuit may be staffed with an Alternative Dispute Resolution [ADR] Director and may utilize volunteer and contract mediators. State funding of mediation programs is ordered based on a formula approved by the Trial Court Budget Commission. However, due to budgetary constraints, with limited exceptions, civil Court mediation programs have not been allocated funding to provide an LEP litigant a formally qualified interpreter free of cost [See Rule 2.560(b) of The Florida Rules of Judicial Administration].

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 [Section 43.26(e), Florida Statutes]. The Florida Rules of Judicial Administration [Rules 2560(d), 2.560(e)(3), and 2.565(c)], in exceptional circumstances, permit  the appointment or retention of an interpreter lacking formal approval or certification as an interpreter.

Thus, in County/Small Claims and Circuit Court mediation programs, should a LEP defendant appear for mediation without an interpreter, the ADR Director may assign a bilingual Court volunteer or staff member either to act as a translator/interpreter or to mediate the dispute at no cost to the LEP litigant. In that event, the ADR Director shall authorize the mediator to memorialize any agreement in English. Florida Rule 10.520 mandates “a mediator shall comply with all statutes, court rules, local court rules, and administrative orders relevant to the practice of mediation”. By way of contrast, MEAC Opinion 2011-017 failed to invoke Florida Rule 10.520 and expressly declined to concur with a Circuit Court appointed program manager directive allowing bilingual mediators to mediate disputes against LEP defendants. As always, the ultimate disposition of a case ordered to mediation may be decided by a judge.

Also, in those civil court programs, should a pro se LEP defendant appear for mediation accompanied by a relative and/or friend, and the plaintiff [may be represented by counsel] does not object to their participation [particularly in residential eviction and time sensitive cases], the ADR Director may authorize the mediator to allow the relative or friend to interpret or translate or the ADR Director may appoint a bilingual mediator to mediate the dispute and to memorialize any agreement in English.

However, in Family Court programs, the process of mediation differs significantly. Authorized by AOSC09-19, Family Courts utilize independent contract mediators under the terms of a written contract with the local judicial circuit. Each individual contract requires the mediator to comply with The Civil Rights Act and to meet the minimum performance standards determined by the local ADR Director. The independent contract mediators are paid by the State of Florida.

The parties qualify for the Family Court mediation program 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.

Unless otherwise agreed, in dissolution of marriage cases, when a so qualified LEP litigant speaks a language for which the Family Court has a bilingual contract mediator on its roster [e.g., Spanish], that mediator shall be assigned to conduct mediation in the language of the LEP litigant [e.g., Spanish] without an interpreter. When a qualified LEP party speaks a language for which the local Court does not have a bilingual mediator on its roster, a contract mediator shall be assigned to conduct mediation in English utilizing a private interpreter selected by the parties. Such Court referrals are readily accepted by both pro se and legally represented LEP litigants. The Court program permits parties to express a preference for a particular contract mediator. All mediated agreements are memorialized in English by order of the Court.

A contract mediator’s opening statement shall inform the LEP parties he/she is obligated to meet the performance standards of the local judicial circuit and to comply with The Civil Rights Act [Florida Rule 10.420(a)].

By training, a mediator is sensitive to social and cultural diversity and aware of the difficulties of mediating with an LEP litigant without a formally qualified interpreter. In the foregoing scenarios, the mediator conducts a mediation conference in compliance with an order of the Court and fulfills a personal contractual obligation. The contract mediator may accept this difficult task [MEAC Opinion 2012-005 and Florida Rule 10.520]. For an article reviewing  an analogous difficult task accepted by a mediator to comply with a Court order, see “The Challenge of Good Faith Mediation in Florida” which appeared in the Orange County Bar Association [Orlando FL]  publication “The Briefs”, February 2013 issue, and other media.

Parties competent in the same two languages, one of which is English, have the right to 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)]. In the distinguishable scenario of 2014-004 the language commonality of the parties was limited to Spanish.

The recent MEAC Opinion 2017-002 proclaims continued confidence in Opinions 2011-017 and 2014-004. Opinion 2017-002 is unanimous and makes no reference to the two separate Dissent Opinions to 2014-004 and to the relevant Dissent Opinion to 2014-009, the latter being a precursor to this entire commentary.

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].

 

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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