Bilingual Mediation, Part 2

Please view Part 1 here.

Must a
Bilingual Mediator possess a native language skill?  

There
are no mentioned levels of linguistic competency in interpreting or translation
professions and much less expressed need to address the level of linguistic
competency in bilingual mediation. In a majority of mediation training syllabus
and programs, culture is not emphasized and the issue of non-English speaking
parties is rarely mentioned. This issue is address here as reference to
mediators who are speaking another language to assess their own language skills
and appraise their own assets of a bilingual treasure.

Let’s
visit the language proficiency definitions from the U.S. State Department:

LANGUAGE PROFICIENCY DEFINITIONS

No

Proficiency Code

Speaking Definitions

Reading Definitions

0

No Practical Proficiency

No practical speaking proficiency

No practical reading proficiency

1

Elementary Proficiency

Able to satisfy routine travel need and minimum courtesy
requirements

Able to read simple prose, in a form equivalent to typescript or
printing, on subjects within a familiar context

2

Limited Working Proficiency

Able to satisfy routine social demands and limited work
requirements

Able to read simple prose, in a form equivalent to typescript or
printing, on subjects within a familiar context

3

Minimum Professional Proficiency

Able to speak the language with sufficient structural accuracy
and vocabulary to participate effectively in most formal and informal
conversations on practical, social, and professional topics

Able to read standard newspaper items addressed to the general
reader, routine correspondence, reports, and technical materials in the
individual’s special field.

4

Full Professional Proficiency

Able to use the language fluently and accurately on all levels
pertinent to professional needs.

Able to read all styles and forms of the language pertinent to
professional needs.

5

Native or Bilingual Proficiency

Equivalent to that of an educated native speaker.

Equivalent to that of an educated native.

http://careers.state.gov/gateway/lang_prof_def.html

The defined language proficiency of the U.S. Department of State
mentioned is so general that it does not define the level of education of a
native speaker, and does not provide any sufficient means to gauge the degree
of language proficiency in its matrix of classification.  In
underdeveloped countries, an adequately educated person could be considered
just a high school graduate. In various countries, an educated person could be
a college graduate. However, would there be a unanimous agreement that a
college graduate is an educated one?

Furthermore, according to the mentioned defined definition, level
4, which indicates that a person has full professional proficiency to be able
to read all styles and forms and use the language fluently and accurately on
all levels pertinent to professional needs. It’s arguable that a person
considered to have full professional proficiency would be able to read and
comprehend all pertinent styles and forms in a foreign language. Nevertheless,
the defined criteria ranks the full professional proficiency as less proficient
than an “educated native speaker”. Contrarily, not all native educated speakers
would be proficient in all areas, including the language and concepts of various
scientific, medical, finance, religion and law fields in their native language.
In English speaking countries, when college graduates entered medical, law or
other professional schools, they still have a hard time absorbing all the new
concepts and meanings of technical terminology. The issue that arises is what
level of language proficiency must a bilingual mediator have to be considered
sufficient enough to conduct a bilingual mediation session. What is the
criteria or standard to qualify a bilingual mediator fully proficient in terms
of language? Who or what institute would be able to establish such criteria or
standard? Here is discussed only the issue of language proficiency. What’s
about cultural proficiency or competency?

Bilingual Mediator v. Licensed
Interpreter:
Bilingual mediators often
claim that they are well versed in both English and the native language of the
non-English speaking party. Some even go further claiming that they are trained
in bilingual mediation.  Many bilingual mediators often believe that
bilingual mediators can have dual roles, wearing the hat of a licensed
interpreter and mediator simultaneously. In fact, it’s quiet contrary to that
assertion. At most court hearings or trials, judges tend to prohibit legal
counsel who can speak his/her client’s native language to serve as court
interpreter because judges asserted that they want to hear the content of
communication between counsels and their client(s) in open court. At the same
time, the court reporter would be able to record all statements or
conversations for court records.  Therefore, most courts requires a
licensed or certified court interpreter to serve at all judicial proceedings,
regardless of whether or not the counsel and client can communicate fluently in
their native language or dialect. Some codes of ethic in the court interpreting
trade prohibited their professional members to perform both roles as
interpreter and legal counsel at the same time, even if the counsel is licensed
both as a court interpreter and attorney.

Major Dilemma of Being Bilingual
Mediator:
The dilemma of bilingual
mediators is that when a mediator speaks English with the opposing parties and
counsel, the non-English speaking party may watch with discontent and
confusion. On the same token, when the bilingual mediator speaks to the
non-English speaking parties, the opposing parties and their counsel would feel
uncomfortable and expect to understand everything said between the bilingual
mediator and non-English speaking parties. In the caucus, it’s acceptable to
all parties since the bilingual only speak either English to one side and
non-English to another side. Therefore, it’s impossible for bilingual mediators
to market or claim that there’s no interpreter needed in the mediation session
conducted by bilingual mediator.

According to Texas law, mediation is a judicial proceeding where
the interpreter is a judicial officer and must be licensed by the State agency.
A dilemma faced is that the licensed court interpreter must be neutral and
impartial and have no interest in the outcome of the case, while the mediator
has interest not only in the outcome of the case but in financial
gain/compensation as well, except pro bono cases. A licensed court interpreter
is required by law to provide no other service besides interpreting all audible
sound and words during the mediation session. The mediator, on the other hand,
must maximize his/her communication skills and a variety of other related
knowledge and psychological expertise to assist parties to understand the
disputing issue(s) and resolve the dispute in an amicable fashion.

As mentioned above, judges demand to hear all conversation between
the legal counsel and his client in open court, the English speaking parties
and their counsel expect the same. Accordingly, bilingual mediator should
always employ a licensed or certified interpreter in all mediation sessions
involving non-English speaking parties. In doing so the bilingual mediator
would be able to eliminate many complicated issues, one of them involving the
code of ethics and professionalism.

There are few major distinctions between
these two roles which cannot be compromised:

Licensed/certified Court Interpreters only maximize the use of
their highest linguistic ability and skills to interpret all audible sounds,
voices, including utterances from one language to another without utilizing
their knowledge about the subject matter to deviate from their role and
professional duty as an officer of the court during the proceeding. A professional
interpreter is not allowed to render any opinion or even explanation about a
concept, idea or issue related to the matter. Interpreters must not show any
interest in the outcome of the case and above all, interpreters must have no
control over the mediation process, including all parties involved.

A licensed/certified court interpreter is not necessarily
considered to be always competent enough to serve as an interpreter in all
disputed matters. That’s the main reason that the trend to certify qualified medical interpreters has appeared to get a lot of attention, not just in the States but
also around the world. There’s a misperception of a licensed/certified court
interpreter as having the capability to serve as interpreter in all judicial
proceedings, including depositions, hearings and trials. From time to time,
trial judges or counsels to the party fired an incompetent interpreter who has
lacked knowledge related to the technical terminology of certain subject
matter, such as science, investment, religion and numerous other fields. The
best approach is to qualify the interpreter each time s/he is hired to provide
interpreting service for a specific mediation session or any other judicial
proceedings. Therefore, the best person who is qualified to assess the
interpreter’s linguistic competency is the bilingual mediator who is able to
speak the same language with the parties and the interpreter.

Contrarily, the mediator must maximize that broad knowledge,
communication skills, personal charisma and dynamic negotiation skill to assist
parties in identifying the issues, differences, positions and interests to lead
the parties to an amicable resolution or settlement. During a mediation
session, the mediator is the only person who is bestowed by the judicial system
with power to control the mediation process. The mediator must maintain
neutrality and impartiality, even though s/he still has a strong interest in
the outcome of the case, and is the only person who would directly report to
the presiding judge the outcome of the mediation session. The reputation of the
mediation certainly adheres to the outcome of the mediation session that s/he
solely conducted. Yet, who would be qualified to assess the bilingual mediation
competency of the mediator?

Bilingual disputants or
parties are very self-conscious about prejudice:
It’s been a major and silent fear that most non-English litigants
and disputants constantly bear within themselves when they are involved in
lawsuits or prosecution and above all, anything dealing with law enforcement
and deprivation of freedom. Whatever communication done in English causes
apprehension and great confusion in the mind of a non-English party. From
apprehension to confusion and fear, non-English party’s basic cognition has
become incomprehensible, stalled and uncooperative which become irritation and
high tension that naturally causes an impasse. It’s not just the language
barrier that leads to high tension and an impasse, but the hidden cultural
perception of prejudice, discrimination and/or feelings of oppression ingrained
in the non-English speaking party. In cases where parties are represented by
legal counsels, non-English parties often feel not having a good rapport,
confidence or trust in their counsels. A counsel’s cordial conversation with a
comfortable smile to other counsels or opposing parties could become a major
fear of being dehumanized and betrayal by non-English speaking parties. The
counsel’s language, facial expression and demeanor at the mediation session are
all important to non-English speaking parties and witnesses.

Bilingual parties
expected the greatest respect:  
Lots
of non-English speaking parties tend to feel inferior when they are summoned to
a mediation session. Their appearance, their demeanors and their oral response
or expression sometimes may not be comprehended, satisfied or pleased by
counsels and opposing parties. However, they always expect a great respect from
all that are present. Often said, it’s not what you want to say, but how you
deliver your message that makes or breaks the mission of mediation. When
non-English speaking parties feel unrecognized, unheard, and unrespected, their inner emotional mechanism automatically
shut down. The mediation becomes impasse. Another important element of mediation
with non-English speaking parties if the issue of “saving face.”

Bilingual Mediator from
their own Community

A bilingual mediator
from a community faces with the dilemma of serving parties from his/her own
community. Many disputing parties prefer not to employ a mediator from their
very own community, much less the leaders in their community. It’s a simple
reason: “Saving Face.” Parties at the mediation session would expect to reveal
all the truth from their own side. Therefore, they tend not want someone from
their very community, their church, or their temple conducting a mediation
session, no matter how much the mediator wants to assure them that mediation is
an air tight and confidential process as they would not comprehend the power
and validity of the confidentiality in mediation. They would not trust that the
mediator from their community would keep everything they reveal confidential.
The fear of the mediator leaking their personal information to the community at
large would increase exponentially more than the fear of merely coming to the
mediation session. Another obvious reason is that that parties would not be
able to hide the truth or reveal half-truth about what happened to the mediator
from their own community. On the positive aspect, no one would know the parties
more than the very mediator who lives with the daily rhythm from the community
of the disputed parties.

Most of non-English
speaking parties come from a different cultural and social system where
groupthink becomes an irresistible psyche. They are strongly influenced by the
collectivism. Their  thinking process, rational and judgment are dominated
by like-minded members of their collective community. Their behavior and
decision making process tend to be irrational, leading to poor choices and bad
decisions. Nevertheless, when dealing with a familiar mediator, the parties
would be more relaxed,  open and express freely by not going through an
interpreter or a third party. When the parties trust and feel confident in the
reputation and expertise of mediator whom they know and are familiar with, the
mediation becomes effective and fruitful. It’s not necessarily the parties that
would settle their differences, but they would leave the mediation content and
satisfied. Additionally, parties would further gain confidence in the process
by being educated to see the matter and understand their positions in clearer
manner.

Bilingual conflict vs.
Bicultural conflict

On the same argument, a
bilingual conflict cannot be considered as a bicultural conflict. For instance,
the Vietnamese who escaped Vietnam after the fall of Saigon (1975) and settled
in the free world have conscientiously tried to maintain and preserve their
cultural heritage, including the language of their native tongue. However, they
are continuously confronted bitterly by the evolving language spoken and
written back in their homeland. When the boat people left their homeland almost
forty (40) years ago, they didn’t acquire the vast amounts of Vietnamese
high-tech and advanced medical terminology. During the division of Vietnam by
various factors, the Vietnamese from different regions cultivated and acquired
a majority of different dialect and slang, having been controlled by several
different empires. When both the North and South Vietnam united and formed a
whole country, many terms that had been used by people from the distant regions
created misunderstanding from each other.

CONCLUSION:

There clear hesitation
to conclude the issue of bilingual mediation discussion while there are many
more issues than resolutions. The issue involved with the need of certified
interpreters in the process of bilingual mediation; the issue of linguistic and
cultural competency of bilingual mediators; the issue of bilingual mediation
conducted by attorney-mediator, mental-health professional-mediator, the issue
of non-attorney bilingual mediator, etc. Nevertheless, there’s always a
positive note that non-English speaking parties do have, an opportunity to be
served by well-trained and competent mediators who can speak a language that
they can understand, sharing the cultural heritages directly or indirectly
related to the culture of their own. There are many more pragmatic studies of
issues related to bilingual mediation being conducted involving various
professions and regulators. In a short note, ADR practitioners should
acknowledge that degrees, diplomas, certifications, credentials, experience and
wisdom that practitioners acquired through the years could not guarantee the
satisfied outcome from mediation session(s) in dealing with parties who are not
communicating with the same native tongue.

As a dispute resolution practitioner, one must constantly assess
oneself in various elements, aspects and total competency before taking a task,
assignment, or mission to manage the process of mediation where parties are not
able to communicate in a culturally competent level. To be an effective
bilingual mediator, one should possess the cultural sensibility and linguistic
competency to quickly create a rapport that subsequently opens parties up for
amicable dialogue.  To be a further effective bilingual mediator, one
should assess and heighten his/her own social and emotional level of
intelligence; one need not to exhibit one’s vast knowledge of the law or
grandeur of experience. Instead one should learn to be an intuitive
psychologist and a humanist and the very humble person who walks in the shoes
of others. The bilingual mediation session may last a few hours or days, but
the dynamic effect to the disputed parties is enormous and may last forever.

Reference:

Limited English Proficiency- Executive
Order 13166, Title VI of the Civil Rights Act of 1964 (Title VI), and the Title
VI regulations regarding language access

http://www.lep.gov/

http://www.lep.gov/resources/081511_Language_Access_CAQ_TA_Guidance.pdf

Language Proficiency Definitions

http://careers.state.gov/gateway/lang_prof_def.html

Difference between “Full professional proficiency and native or
bilingual proficiency

http://english.stackexchange.com/questions/87034/difference-between-full-professional-proficiency-and-native-or-bilingual-prof

Certified Medical Interpreters

http://www.dshs.wa.gov/pdf/ltc/Medical-Spanish%20Booklet.pdf

National Certification
for Healthcare Interpreters

http://www.ncihc.org/certification

The National Board of Certification for Medical Interpreters (NBCMI)

www.certifiedmedicalinterpreters.org/?

Interpreters As Officers Of The Court

http://www.najit.org/certification/Interpreters%20as%20Officers%20of%20the%20Court.pdf

Licensed Court Interpreters Administrative
Rules

http://www.tdlr.texas.gov/court/lcirules.htm

The National Center for State Courts

http://www.ncsc.org/Education-and-Careers/State-Interpreter-Certification.aspx

http://www.ncsc.org/Education-and-Careers/State-Interpreter-Certification.aspx

http://www.ncsconline.org/D_Research/CourtInterp/Res_CtInte_7OverviewoftheOralExam.pdf.

Language Access in Texas
Courts

http://www.courts.state.tx.us/oca/LanguageAccessTxCourts.asp

Resource Guide for Advocates & Attorneys on Interpretation
Services for Domestic Violence Victims

http://www.apiidv.org/files/Interpretation.Resource.Guide-APIIDV-7.2010.pdf

Training Bilingual Speakers As Mediators

http://www.newschannel5.com/Global/story.asp?S=6209761

http://www.mediation.com/articledetail.aspx/article/speaking-different-languages–bilingual-mediation-can-help

Spanish Speaking Mediators

http://www.courts.state.co.us/userfiles/file/Administration/Executive/ODR/Spanish_Information/Spanish_Speaking_Mediators.pdf

ACEBO

http://www.aceboproducts.com.

Footnote:

This condensed version of a much major undertaking is not intended
to deliver a scientific or empirical research about an issue that the author
feels so close to heart. It’s an end result of lasting services rendered to
clients from all walks of life, various cultures, languages, age gaps, genders,
political ideologies and life experiences.  Bilingual mediation is not
what the author acquired from any particular educational institution, but his
constant educational endeavors and life experiences across more than three continents
and many nations. The author is indebted to many professors, authors,
colleagues, friends, family, students and above all, clients who have taught
and enriched the author with the sufficient ability to serve, not only with his
hand and his head but most importantly his heart.

Please forward all constructive comments and suggestions to PAXDRC@Gmail.com, thanks.

[1] Arbitrator-Mediator-Lecturer-Licensed Master Court Interpreter
(TX); Director of PAXific Dispute Resolution
Center-Dallas, Texas. ©2014BernardDangNguyen

                        author

Bernard Nguyen

Described as being at the cutting edge of our profession and a beacon of peace, justice, and mercy in the community, Bernard Dang Nguyen is the Founder and Executive Director of PAXific Dispute Resolution Center in Dallas, Texas where he provided arbitration, mediation and ADR consulting services, researched, authored, translated… MORE >

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