Using Written Word to Avoid Failure in Mediations
When I was a transactional attorney, I cannot recall how many times I heard a client say they had reached a deal with a counterpart only to later learn that the deal wasn’t as firm as they thought. This most often arose not from bad faith but from the intent of one party being different from what was perceived cross-culturally by the other party. From that, I learned how to help clients make sure such misunderstandings didn’t occur and those tactics hold true for avoiding misunderstandings in mediation too. One key tactic is to recap in writing any key points to a mediation as you proceed.
Why?
“Why is that?” you might ask. First, sometimes a party in another culture will use a gesture (such as nodding) or phrase (such as “yes”) that suggests the party is agreeing when in fact it just means the party is listening. Second, many people have stronger skills in writing than they do in listening or speaking in a non-native language. Third, many parties have to report to their higher-ups and it is useful to have something in writing to make sure they’re reporting the discussion accurately. Fourth, it can’t hurt. That is to say, I have never heard any party object to an effort by the other party to make sure they are understanding what is being proposed or conveyed. The time is well worth the effort. Positions are clarified and the parties do not waste time pursuing inconsistent terms.
What?
“What should you recap?” you might ask. First, be sure you understand what the key issues are in a dispute from the perspective of the other party. If, in an opening statement, they have shared some insight on those points, it may be useful to recap those points in writing. If a party has made a proposal and you’re considering it, you should recap the proposal to make sure you understand it. If, on the other hand, the other party has explained that it objects to your proposed settlement, you may recap the reasons the other party gave, so you can then address those objections one by one. Finally, once an agreement is reached, recapping the key terms before anyone drafts a settlement agreement is useful. Doing so will often help trigger additional logistical questions about settlement terms that can be hashed out before anyone puts pen to paper to draft a settlement agreement itself.
When?
“When would a recap be useful?” you might ask. As the above discussion about written recaps suggests, written recaps can be useful at the early stages of a mediation or even before a mediation if pre-mediation briefs are shared with the mediator and the mediator is seeking to understand a particular client’s real objectives. Recaps can be helpful to keep negotiations on track at key points during a mediation. They can be useful to make sure the parties have agreed on a settlement when they think they have a deal. In sum, consider the utility of a recap at regular intervals if the parties are from different cultures and definitely to verify the terms of any settlement agreement before it is fully drafted.
How?
“How detailed does the recap need to be?” you might ask. The less wordy a written recap is, the better, when the person reviewing the recap is functioning in a non-native language. Complexity, detail and length vary, however, depending on the settlement terms. The key is to present ideas in plain language, with short, simple sentences, even if that makes the document longer. Outlines or bullet points of terms are advised, in contrast to long narratives. It is best to avoid more than one settlement term per sentence.
Who?
Who can use this tool? As a mediator, I have used periodic written recaps to make sure all the parties are tracking one another. I have also seen both parties or their respective legal counsel use written recaps to make sure there’s no disagreement OR to clarify where disagreement lies. Anyone who is concerned that the parties might miss a settlement opportunity due to miscommunications, should use this tool to increase the likelihood of a successful mediation.
Give it a try; I think you’ll like it!
Use of Interpreters at Mediations
Parties come to a mediation with a history of misunderstandings in most cases. Misunderstandings are often the causes of the dispute. The last thing parties and their counsel want at a mediation is to further any misunderstandings or cause new ones. When the parties speak different languages, that risk increases.
Even if parties/counsel believe that they are fluent in another language, it is always wise to have an interpreter if the mediation is being conducted in another language. The parties and counsel should be concentrating on mediating, not on interpreting. The interpreter should be an official interpreter rather than a friend or colleague who knows the language. Terms used in legal disputes are often technical and/or legal; not everyone knows such terminology. Moreover, interpreting requires intense concentration and trained interpreters know when they need to take breaks and how to manage the process to sustain their performance throughout the mediation. A interpreter friend may also have difficulty keeping to the interpreter role – becoming caught up in the process of the mediation and forget to interpret.
Having a neutral interpreter also mitigates an interpreter putting his/her own spin on what is being communicated. A neutral interpreter has no interest in the outcome of the mediation and therefore is less likely, even inadvertently, to alter interpreted statements to favor one side or the other.
This also allows the party or lawyer who speaks both languages to more easily identify mistranslations. The official interpreter will not be familiar with the contours of the dispute, may not understand something that others do from context, or may not be familiar with legal or technical terms. Parties/counsel can speak up and try to explain the particulars to the interpreter. There is nothing wrong with doing that. Mediations are not “recorded” in any way – there is no court reporter or possibility that what is discussed in the mediation will become part of any record. Although getting the words right is important to facilitate the mediation, perfection is not a requirement.
If parties are going to use an interpreter, here are some tips:
Discuss the plan with the mediator and other parties. Typically in mediations interpreting would be serial rather than simultaneous. That means more time is needed to allow for repetition of any comments made to and from the person who requires the interpreter. Using an interpreter may also require added breaks, for the interpreter to maintain high quality interpretation.
Plan time to allow the interpreter to identify the interpreter’s needs. Pause to allow interpreting every few sentences and avoid interrupting one another so that one person’s comment can be translated before another thought from another person is raised.
Brief the interpreter on the background of the dispute and make sure the interpreter understands the confidential nature of the mediation. It may be appropriate to have the interpreter sign a confidentiality agreement, as well, if all potentially applicable law does not require the interpreter to keep the mediation confidential.
Context Matters – How to Avoid Missteps in Cross-Border Mediation
Sara Sandford and Lisa Savitt recently shared some of their tips for avoiding missteps in cross border mediation at the Union des Avocats International/International Association of Lawyers 30th World Forum of Mediation Centers conference held in Malaga, Spain. The interactive program focused on understanding the impact of cultural differences and legal systems on mediations. Lisa and Sara shared tips, including:
Working with clients to understand their and their attorneys’ expectations regarding the mediation style and format.
Preparing for the mediation by studying cultural differences among the countries of origin of the participants, which could impact:
Goals – solution/relationship
Attitudes – win/win or win/lose
Personal Styles – informal/formal
Communication Style – direct/indirect
Time Sensitivity – precise/casual
Trust – how it’s demonstrated
Emotionalism – high/low
Form of Agreement – specific/general
Agreement Process – bottom up/top down
Team Organization – one leader/consensus
Risk Taking – high/low
Format of Mediation – formal/informal
Developing strategies for how to help rebuild trust or confidence, when someone unwittingly disrupts the flow of mediation by a misstep.
In addition to knowing the issues and parties’ stated objectives, mediators have to understand the basic legal regimes of the matter being mediated. They also need to understand and plan for the conscious and unconscious expectations and attitudes brought to the table – particularly when there are substantial differences in how parties might approach dispute resolution and decision-making. Lisa and Sara explained how essential it is for mediators to help the parties anticipate these kinds of challenges in advance of a mediation so missteps don’t derail a mediation that could otherwise be successful.
Welcome to the Savvy Mediator
Welcome to our blog, “The Savvy Mediator”. We are delighted to announce the launch of this blog about mediation—one of our favorite topics. We want to share some of our knowledge with readers both about why you might choose mediation and how to make the most of mediation when you do.
We will offer tips that are universally relevant to mediation, whether local or global. We will also focus frequently on topics related to cross-border mediation, because we don’t see enough information online about that topic. Mediations involving people from different cultures and disputes in more than one country typically present unique challenges.
We welcome your comments, questions and requests for topics too, so please don’t hesitate to reach out to any of us!
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