by Judge William Culbreth
Deputy Commissioner at Commonwealth of Virginia
“If I had a world of my own, everything would be nonsense. Nothing would be what it is, because everything would be what it isn’t. And contrariwise, what is, it wouldn’t be. And what it wouldn’t be, it would. You see?”
“When I use a word,’ Humpty Dumpty said, in rather a scornful tone, `it means just what I choose it to mean — neither more nor less.”
Lewis Carroll, Alice’s Adventures in Wonderland/Through the Looking Glass
These quotes, from the master of literary nonsense, take several readings before the convoluted meaning begins to emerge. The same can be said in many mediations of the statements of the various participants. Oftentimes, we, as mediators, need to listen extremely carefully to unpack and understand exactly what the parties are saying and what they desire. In today’s COVID-restricted world, the challenge of understanding is amplified since most mediations are now conducted by telephone or by videoconference.
In the best of times, mediation is a delicate interplay of skills for any mediator. Mediators must talk, listen, develop rapport and trust and, if successful, help the parties navigate competing emotions and narratives en route to a self-directed resolution. This balance of goals, grievances, and personalities can be difficult when everyone is sitting around a table, face to face. However, when social distancing eliminates the ability of the parties to even meet at the same location, a new layer of complexity is introduced. Add to that the awkwardness of virtual mediation or mediation by telephone and the job grows harder still. Finally, into that mix add the necessity for an interpreter and the process becomes barely recognizable. So, how do we, as mediators, adapt to this world in which we find ourselves?
Prior to the pandemic, I would, when seated around a table for mediation, explain to the parties, that mediation was “conversation, not conflict.” I would quickly explain that this description did not mean that everyone agreed, for, if that were the case, mediation would not be necessary. Rather, I would try to convey that we were all present, as peers, to see if the parties could create their own resolution to an ongoing problem. Under that scenario, with eye contact, smiles, and gentle reassurance, I could generally set a pleasant and relaxing tone for the upcoming mediation. Pre-COVID, I would still strive for this level of connection even when an interpreter was used.
However, using an interpreter created its own, unique challenges. As Ileana Dominguez-Urban correctly notes in Messenger as the Medium of Communication: The Use of Interpreters in Mediation, 1997 J. Disp. Resol. (1997), “merely adding one more person to the mediation process adds greater complexity to the dynamics of the mediation than most lawyers and mediators would anticipate.” As the author goes on to note, “mediation is inherently ‘a communication process.’ There is no greater barrier to communication than the inability to use the same language.” Add to that “complexity,” the need for all parties to be in separate locations and communication has the potential to break down even more. Therefore, mediators should establish the ground rules regarding appropriate timing of questions and answers so that the interpreter will have the opportunity to work.
Interpreters will generally use one of two styles of interpretation: consecutive or simultaneous. In consecutive interpretation, the interpreter provides the interpretation during the breaks provided by the speaker. In simultaneous interpretation, the interpretation is provided while the speaker continues to speak. In my experience, consecutive interpretation is more frequently used and may provide greater accuracy because the interpreter has time to clearly hear the spoken word and provide the proper translation. However, since each portion of a conversation, from introduction to conclusion, will have to be broken up and interpreted, the process may take considerably longer than anticipated. For example, approximately 30% more language is needed to express something in Spanish than in English. This is especially true, and especially difficult, when mediations are conducted telephonically without the benefit of visual cues. Consequently, in either virtual or in-person mediations, all parties should make a conscious effort to avoid using culturally specific language, literary references, colloquialisms, and legal jargon since these make a difficult job even harder.
Although various mediums are available to mediators in order to keep mediation on track in these unusual times, my preferred alternative to in-person mediation is use of a telephone as opposed to various video options. Although far from “tech savvy,” neither am I a Luddite who eschews modern technology. Rather, I have found, over the past year, that, deprived of visual cues, I tend to focus more carefully on the words being spoken. Not having to be concerned about the technology involved makes this even easier. Yet another factor in favor of telephone mediations is the ready availability of phone access versus the potentially limited access of some individuals to the high-speed Internet connection necessary for video mediations.
However, regardless of how are you conduct your mediation – by phone or by video -the results do not appear to be affected. Although relatively few data driven studies have been performed, our experience as mediators with the Virginia Workers’ Compensation Commission is that there has been no appreciable decrease in “success” rates from pre-pandemic, in-person mediations to our current model of videoconference or telephone mediations. For example, in 2018, the resolution rate for full and final mediations was 84.4%. The resolution rate for 2020 was… 84%.
Going forward, try to remember, as mediators and participants in mediation, that even in these challenging times, connection and understanding remain possible… and vital. Be especially aware of the difficulties faced by those with whom we do not share the same language and the interpreters who play critical roles in making our legal system, and ADR in particular, accessible to all.