101 on Mediation for Non-U.S. Clients
A client from another country may never have participated in, or even heard of, mediation as an alternative dispute mechanism. Many will be familiar with arbitration and may believe that mediation is similar to arbitration. Besides informing the client about what mediation is and how mediations are generally conducted, it is important to also explain the benefits of mediation. If there is pending litigation in the U.S., the client has already been briefed on the U.S. legal system, including some detail about the discovery phase, which does not exist in most non-U.S. jurisdictions.
HOW IS MEDIATION DIFFERENT FROM ARBITRATION?
The client should understand that mediation does not result in a decision of the matter on the merits and the mediator is not the “Judge.” The client should not be expecting that the full case will be presented during the mediation. Most importantly, each party should be agreeing to the mediation with a true desire to resolve the dispute.
WHAT ARE THE BENEFITS OF MEDIATION?
Mediation is a lot less costly than arbitration or litigation. If a settlement is reached at the mediation, or even afterwards with the help of the mediator, the case is over. There is no waiting for an arbiter or judge or jury to issue a decision. There also is true finality because there is no basis for appeal. There is no decision to appeal because only the parties determine the outcome of a mediation; the parties agree on a settlement or they don’t agree on a settlement. That is all.
WHAT WILL HAPPEN IN MEDIATION?
It is also important to explain to non-U.S. clients the various forms that mediations might take. For example, the mediation may be remote or in person. The parties may start together in the same room and counsel may even make some remarks. There will have to be someone with full authority to settle the matter appearing for all parties. The client should be told about “shuttle diplomacy” as the mediator goes back and forth between the parties. Also, clients should not worry if the mediator takes a short or long time with a party. Definitely stress that whatever is communicated to the mediator is typically to be considered confidential unless the client gives permission to the mediator to use certain information in speaking with the other party. Remember that this is likely to be a client’s first experience with mediation. Informing the client about the process beforehand to avoid surprises will definitely increase the likelihood of success.
CONSIDERATIONS FOR NON-U.S. CLIENT
Lastly, be sure to have an interpreter at the mediation if the client is not fluent in English. Misunderstandings about what is being proposed or agreed upon can be serious. Cultural differences should be taken into account as well, not only as to the client, but as to the other parties as well.
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.