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February 29, 2024

Access to Bilingual Materials in Mediation: Ensuring Equal Participation and Fair Outcomes

Kevin Kinnear

Mediation has emerged as a popular method for resolving disputes due to its emphasis on communication and self-determination. However, those with limited English proficiency (LEP) can face significant challenges to effectively participating in the mediation process, potentially undermining the fairness and legitimacy of the outcome. Ensuring access to bilingual materials in mediation is crucial to creating an environment where all parties can engage meaningfully and reach mutually agreeable resolutions.

LEP can lead to a failure to communicate, a failure to truly understand each other, and to feelings of isolation, and it also can impair cross-cultural understanding. This, in turn, can limit certain parties’ abilities to fully understand the issues in a dispute, articulate their interests, and effectively advocate for their needs. Providing bilingual materials in mediation addresses these challenges by promoting informed participation, reducing power imbalances, and enhancing understanding and trust.

Access to bilingual materials for mediation has been promoted as an issue relating to access to justice and addressing discrimination concerns, and it also has been discussed in connection with the Americans with Disabilities Act (ADA) as an analog. In fact, the U.S. Department of Justice, Civil Rights Division (“USDOJ”) has warned state courts and others receiving federal financial assistance that they must provide interpreters and translated materials free of charge in all types of cases to comply with Title VI of the Civil Rights Act of 1964. The USDOJ has issued guidance regarding compliance with Executive Order No. 13166, and it has set up a website specifically for this purpose (lep.gov).

Partly in response to Executive Order 13166, most states’ courts now have some form of interpretation and translation service available. This also has been in response to cases in which LEP persons have been evicted without knowing why, have lost custody of children because they did not understand the process or issues, and many other circumstances in which parties have been denied rights that they might have been able to protect had they been given language access assistance.

The National Center for State Courts also has been working diligently on assisting state courts to develop language access programs. In the context of mediation generally, and court-connected mediation specifically, providing language access through translated (bilingual) materials is not always required, though. Nevertheless, many states are now working to provide interpreters and/or translated materials where a mediation is ordered in a state court proceeding, especially where one or more parties are indigent.

For example, New Mexico’s state courts have developed a robust bilingual materials and interpreter program. Its courts provide extensive language access services, which each judicial district is allowed to tailor to its own needs and thus develop its own plan. The New Mexico legislature has provided funding for these services, which include interpreter assistance and a significant body of translated materials. Many court forms and documents are posted on the Court’s website, including bilingual documents in Spanish, Chinese, Vietnamese, Arabic, and other languages. Notably, the State’s ADR program benefits by having access to interpreters and translation services for court-connected ADR participants. The process is assisted further by courts having forms on their websites (e.g.. in Spanish), allowing individuals to download fillable form complaints, and then complete and file the complaints for matters such as civil general, family relations, landlord-tenant, and other claims.

Challenges to providing more comprehensive access to bilingual materials for mediation relate primarily to funding and fairness. Many courts do not have resources for a complete suite of services to provide bilingual or translated materials for mediation for all parties. These costs are significant, and in most cases they would require either state-wide appropriations or significant new court fees to cover them meaningfully.

To the extent that there is some funding available, then questions arise regarding which materials should be translated and made available in which languages (i.e., whether to translate more materials into fewer languages, or instead translate fewer materials into several languages). In some areas, there might be little need for such bilingual translation into more than one language (if at all). In regions with hundreds of thousands of people speaking dozens of languages with LEP, the problem is obviously magnified. A related concern is with new and revised documents, which also would need to be translated.

It has been suggested that, where parties are represented, it typically would be incumbent on counsel to facilitate any necessary interpreter services or do so themselves. Because courts in the United States generally require filings to be in English and hearings/trials to be conducted in English, it is assumed that any U.S. attorney representing a party in mediation can communicate effectively with an English-speaking mediator and the other parties’ U.S. counsel. To the extent such an attorney requires translation services in representing a party, then such service presumably would be used in the mediation as well. This argument ignores the implications of pro bono, court-appointed, public interest, and government attorneys, though.

Finally, there are concerns relating to the accuracy of translations and the proficiency of interpreters. Ensuring that a legal document is translated accurately and adequately to provide meaningful access to the courts requires more consideration than simply translating words, and culture matters in this process. (For example, in a water rights matter in the Southwest, simply translating the term “irrigation ditch” as “acequia” could lead to a number of misunderstandings about the nature of the structure and its operation.) Many states have programs to test interpreters’ proficiency, and some level of review should be made of translated materials.

Courts and mediators associated with court-connected mediation can look to the programs and tools discussed in the DOJ’s lep.gov and the NCSC websites discussed above, and to states with strong programs like New Mexico, for ideas to overcome language access problems in individual cases. However, systemic changes require large-scale financing primarily through legislative appropriations and/or court fees. Inasmuch as mediation is becoming a more important and well-used part of the dispute resolution and justice spectrum, it is important to include these services with court-connected mediation.

    Kevin Kinnear

    Tenth Circuit Court of Appeals

    Kevin Kinnear is a Circuit Mediator with the Tenth Circuit Court of Appeals. He is a graduate of the Colorado College (B.A.), University of Colorado School of Law (J.D.) and Pepperdine University Caruso School of Law (LL.M.—Dispute Resolution). Kevin practiced water law in Colorado for 25 years, and it is in the context of water, land, and natural resources disputes that he began his work in mediation. At the Tenth Circuit, Kevin mediates every type of civil case that is appealed to the Circuit Court, including civil rights, Indian law, agency, insurance, commercial, and other matters. The author’s views are his own. Kevin can be contacted at [email protected].

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