A fundamental mission of every mediator is to build trust with the parties and their lawyers. We do this by, among other things, actively listening, asking thoughtful questions, and discussing the case with honesty and candor. Essentially, the mediator uses communication skills to forge a connection with the participants.
Assuming the mediator wants to accomplish this mission, imagine a scenario where one of the parties does not speak English. While there may be an interpreter in the room, the mediator may nevertheless find it difficult, if not impossible, to establish a real connection with the party. Despite the interpreter’s best intentions, non-English speakers often find themselves isolated, confused, and wholly disconnected from the mediation process.
As a mediator, I see this setup all the time. Many parties in employment disputes speak only Spanish. Entering their room, I see that they want to tell their story, but are resigned to the fact that they likely won’t be able to do so in an English-dominated environment. To them, I may appear to be a blue-eyed non-Latino who, like most others in the California legal community who look like me, probably won’t speak Spanish. So I quickly dispel that notion and strike up a conversation in their own language.
My Spanish is far from perfect. I mix up some tenses and have a hard time understanding some accents. (Argentinian? Forget about it!) But I have been speaking Spanish regularly for nearly 30 years. As a plaintiffs’ lawyer, many of my clients only spoke Spanish, so I had to hone my active listening and questioning skills in order to connect with my own clients. I also know all the legal terms relevant to employment law — partes ("parties") talones de cheque ("wage statements"), horas extras ("overtime"), despedido ilegal ("wrongful termination"), etc. — and can rattle them off with a fluency that matches my English at times. When I don’t remember a word, I resort to Spanglish and keep going, stopping only when I encounter confused looks.
Although I am not 100-percent fluent in Spanish, the effort alone of striking up a conversation in the same language as a party allows me to start establishing the connection required to build trust. I may not use Spanish all the time and am cognizant that some lawyers do not want me speaking directly to their clients in a language the attorneys don’t understand, but I can tell that most Spanish-speakers appreciate being able to tell their story to me in their own, unfiltered words.
At a minimum, by speaking to litigants in their own language at mediation, I can attempt to make them feel more comfortable. If that happens, my communication in Spanish can go a long way towards creating a connection with the litigants and, by extension, establishing the trust I need to help ensure a successful mediation.
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