Bilingual Mediation: Honoring Intercultural Uniqueness, 0519 COBJ, Vol. 48, No. 5 Pg. 20

Author:BY ROGELIO HERNANDEZ-FLORES
Position:Vol. 48, 5 [Page 20]
 
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48 Colo.Law. 20

Bilingual Mediation: Honoring Intercultural Uniqueness

Vol. 48, No. 5 [Page 20]

Colorado Lawyer

May, 2019

ALTERNATIVE DISPUTE RESOLUTION

BY ROGELIO HERNANDEZ-FLORES

Parties in conflict frequently revert to their cultural and linguistic background to make sense of the variables that influence decision making. This article discusses bilingual mediation, which strives to ensure that meaning is conveyed across diverse cultural nuances, assumptions, and communication styles.

Mediators try to understand the parties' interests when crafting the best possible mutual agreement. The goal of bilingual mediation is no different. But bilingual mediators recognize that language and culture strongly influence perception and common sense and thus impact most decision making. In bilingual mediation, the mediator is not only well versed in two or more languages, but also understands the parties' culture.

This article addresses the influence that bilingual communication and cultural differences have over the parties and the mediator. The points made may seem evident to some, while for others, the comments about culture might cause disagreement. Regardless, all should agree that clear bilingual communication and an understanding of multicultural influences have an unmistakable impact on mediation and its outcome.

Culture and Language are Key

Although it may seem obvious, the combination of cultural background and the use of language to convey meaning significantly differs between cultures. These differences can be heightened in conflict situations. The bilingual mediator needs to be aware of the gamut of cultural and linguistic expressions that convey meaning. Underestimating these differences can easily disrupt the parties' efforts to reach agreements. Engaging the parties at their level of communication skills and cultural understanding is critical to helping them understand the variables that affect their lives. Communicating to connect across different cultures requires the mediator to have heightened listening skills. This ability to hear what the parties are really saying facilitates a good mediation and is the trademark of bilingual mediators.

Mediators must always be keenly aware of the factors underlying the dispute. When parties are from different cultures, this awareness is even more important. Bilingual mediators must not only communicate in different languages but also appreciate the cultural perspectives of the parties. This includes knowledge of nuances, habits, customs, and traditions that are inherent to their cultures. Effective bilingual mediation encompasses both linguistic communication and cultural communication so the parties have a full understanding of the different aspects of the dispute and its possible resolutions.

For example, a party may contact a mediator to inquire about mediation services. The first round of questions is: "Do you speak Spanish? Can you mediate in Spanish and English? We need to understand what's going on! We only want to get divorced and they told us we needed to go to mediation. Why do we have to? We have a business between us; do we have to divide it?"

Another person calls a mediator, saying: "I've been working with this guy for a long time, and now he sends me some papers saying he wants to take me to court. I thought I was working with a man of his word; he was referred to me by a close friend from his country. That's why we made a verbal agreement; following their custom, as I did with his friend, we shook hands to seal our agreement. Now he wants money. This is insulting. I don't even know why he's saying this; we've been working well for a long time. Now he's angry and doesn't want to talk. How can I resolve this? I don't want to go to court; I just want to keep on working."

The parties in either case would benefit from the use of a mediator to help them communicate and facilitate a mutual resolution. Nevertheless, deeper listening reveals the parties are also seeking to gain awareness of their cases in a way that makes cultural sense to them. Understanding based on cultural common sense allows the parties to gain insight, discern different variables, gauge alternatives, and ultimately build on negotiated opportunities and recognize possible solutions.

If language is a concern, a bilingual mediator would help the parties communicate throughout the mediation session. Accurate communication alone resolves many cases. But reaching full comprehension requires a broader approach, one that goes beyond clear two-way communication; it relates to a person's past and present cultural background, which influences perception, beliefs, and decision making.

For many people, the norms of their culture of origin form an important part of their common sense. When asked to assess their case, their cultural perspectives will influence the creation of alternatives and how they gauge the possible effects of their decision making during the mediation process. Cultural influences become more apparent in cases that carry high stakes, either at a personal level or in negotiated results, and in those that have a significant impact on the parties' lifestyle.

As populations increase and become more diverse, there are a growing number of cases in the judicial system that require diverse bilingual skills, which explains the increase in bilingual attorneys, certified court interpreters, and most recently, bilingual mediators. Intercultural experience and courtroom exposure show that clear two-way bilingual communication advances understanding, and accounting for perspectives that come from cultural differences enables the parties to have a deeper perception, empowering them to become actively involved in mediation and the judicial process.

Cultural Variables

Psychologist Geert Hofstede explains on his website why culture is so important:

Do we need to bother about culture? Every visitor of this site has her or his unique personality, history, and interest. At the same time, we share our human nature. We are group animals. We use language and empathy, and practice collaboration and inter-group competition. The unwritten rules of how we do these things differ from one human group to another. "Culture" is how we call these unwritten rules about how to be a good member of the group.1

Cultural awareness is important in mediation. Multicultural parties may be trying to adapt to a new environment while trying to resolve a court case within a framework they can work with, based on their cultural background.

To facilitate the most favorable agreement, the mediator must try to figure out the parties' basis for decision making.2 For example, during one of the author's workshops on bridging cultural differences in the workplace, the question about "truth" came up. One participant asked how to know if someone is telling the truth; another asked what the concept of truth is across cultures. The answer is that generally the perspective of truth varies by culture. Someone from the United States or Germany might say truth is principled, the truth is the truth, and nothing else. But someone from China might answer that truth is in the eye of the beholder. Someone from Mexico or Latin America might dare say something along the lines of: "Tell me how much truth you want me to tell you, so we can resolve this issue and maintain our good relationship."

What is interesting about this example is that we all can see the correlation of the concept of truth regardless of our different cultural backgrounds. We might give more value to one description instead of another, or smile about shrewd interpretations of truth. But it is precisely the awareness of the different cultural correlation of concepts that is important. The ability to identify how a concept is used or applied based on different cultural interpretations gives the bicultural mediator a foothold to start working on those differences and move toward an understanding of equivalent terms and the weight these concepts carry with each person's perception. For example, while cultural concepts of truth such as "truth is in the eye of the beholder" or "tell me how much truth you want me to tell you" will not go far in the U.S. judicial system, mediators must be aware of these concepts because such views influence the parties' actions and decision making.

As people decide on matters of importance, some cultural qualities have more influence than others, depending on context. Context is of special interest for bilingual mediators, as it can refer to personal culture, life experience, gender, race, and national origin. Hofstede has defined six national cultural dimensions, which "represent independent preferences for one state of...

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