February 25, 2019 Articles

How to Avoid the Top Three Pitfalls of ADR When Your Client Is a Non-English Speaker

Lawyers should be mindful about ADR, especially when a language barrier exists.

By Hon. Zuberi Williams and Shreya Patel

Alternative dispute resolution (ADR) is killing it these days! There are many reasons. First, the overburdened judicial system cannot try every case. Second, studies have shown that when parties self-determine solutions to their own disputes, they have greater satisfaction. Third, ADR can be cheaper and more efficient, and it can lead to more robust and enduring solutions. Last, ADR can be a more effective path for solving large, unwieldy problems.

Whether it is a settlement conference with a judge, mediation, or arbitration, lawyers are reengineering what future litigation looks like on the local, national, and international stages. But, as we rocket toward the future of ADR, lawyers should be mindful about its effect on their clients. Especially, where language is a barrier to communication between the attorney and the client as well with other parties. This article identifies three pitfalls lawyers should avoid when a language barrier exists in legal proceedings.

1. Build Trust with Your Client

The actual ADR meeting can be intense for clients. The process is foreign. It is unfamiliar. Its purpose can be confusing because clients have either filed, or been served with, a lawsuit because they could not work out an issue by themselves. Why participate in ADR, which tries to resolve the issue without a trial? Having a trial was the whole reason for the lawsuit.

“It takes work to get your client comfortable with the process, which, if conducted in English, is amplified with a non-­native speaker,” cautioned Adam Lurie, head of the U.S. dispute resolution practice group at Linklaters, LLP. “The biggest problem with having different languages at the settlement table is trying to gain trust from your client.” Lurie went on to explain that because ADR is not always focused on the merits of the case, but instead may address a practical discussion of the party’s goals, it can be harder to win trust from the client. The client is often more comfortable talking about the facts of the case, so when this is not at the forefront of the discussion, the client may be hesitant to trust the process and, more importantly, his or her lawyer. “You have to win the client’s trust and let them know that you are in their corner,” summarized Lurie.

The best practice solution is not novel: An attorney must take the time and energy to over-explain the process to the client in his or her native language, making sure he or she actually understands. Parties may come from countries where the legal system is not as robust, so explaining the issues may be challenging. This may seem like a no brainer, but it is routinely overlooked by even the most experienced trial attorneys. In such instances, the lawyer does not explain the process, only explains it once, or relegates the task to a member of his or her firm who speaks the client’s language. However, often only the client and the attorney (who does not speak the client’s language) appear at ADR meetings. At this point, the reliance is on the ADR facilitator to explain the process to the client. By this time, it is too late and insufficient for the client. Instead, spend time introducing your client to the process in the client’s language before ADR meetings. Build authentic trust that can carry you through the entire process.

2. Interpreters Alone Are Basic—Stop Being a Basic Betty (or Bob)

Woven in every language barrier is the silk thread of culture. Sometimes merely speaking another language is not enough. An understanding of the beliefs, perceptions, and concerns of a culture often sits at the heart of resolving issues. A party’s willingness to settle and perception of the strength of a case can be amplified by cultural difference. This is true not only between cultures but also within cultures that speak the same language but have different traditions. “Having an interpreter [alone] may not cut it,” Lurie explains. “An interpreter might not convey the right message, so it can be more effective if there is someone on your legal team, who has a fiduciary duty [and who understands the culture], to speak the language.” The most evident problem that arises when parties to dispute resolution speak different languages is that there is a lack of familiarity with the culture. Attorneys may not be familiar with the opposing party’s background, which can shape the way the parties interact at ADR meetings. It is sticky. It is complex. It is touchy-feely. But it is also conquerable.

The best practice when participating in ADR with a non-native-speaking client is to adopt a team approach. Do not fall into the “I’ve been practicing for 20 years and all I need is an interpreter” diatribe. It is too basic, bravado, and it misses the point. “Attorneys need to hire more foreign-language interpreters and lawyers [as members of their firms],” surmised Musha Eisner, a certified interpreter for the Maryland state judiciary with 16 years of experience in the courts and mediation. “Any state-certified interpreter can do the job, but for the client to have a true understanding of the process, the potential exposure, and whether or not they are getting a good deal, has to stem from conversations with their attorney ahead of time.” There must be someone on the lawyer’s team who holds the client’s hand through the ADR process and understands ahead of time what cultural pitfalls may exist. “A judicial temperament, patience, and repetition is required from your interpreter,” stated Eisner.

This is especially true with international ADR. “You have to [be] careful to avoid having only a United States hat on when you have different languages at the table because it could make the legal advice one dimensional,” explained Lurie. It is too basic. Instead, give your client global advice and show your client that you have thought about the issue from many different angles. You have to explain the different ways in which the case can proceed through the dispute resolution process depending on the language used and type of law that will govern. “This embodies a different level of cultural and strategic sensitivity,” continued Lurie.

3. Perform a Pragmatic Risk-Loss Assessment

One of the keys to a successful ADR is the ability for parties to perform pragmatic and reasonable risk-loss assessments about the value of their case. Each party may ponder the full range of key decision points that a judge or jury may consider. Failure to do this leads to unrealistic client expectations and can rattle the ADR process from the beginning. It is natural for parties to fantasize about potential gains but minimize their tolerance for risk. Effective lawyers will provide a reasonable reality check for their clients. It is not enough for the attorney to follow a pro forma script or explain risky outcomes to the client in a language unfamiliar to the client. The lawyer must authentically manage expectations and ensure the client truly understands.

This important attorney-client conversation can be paralyzed by the language barrier between lawyer and client if the lawyer does not take sufficient time to assess the risks and clearly communicate that assessment to his or her client. This communication can be time-consuming. It can be redundant. It can be exhausting. It can seem unimportant. The best practice solution is to sit down with your client and do it anyway. It is essential. Spend time with your foreign-language interpreter or member of your firm to create the risk-loss assessment questions you plan to ask non-English-speaking clients. Be detailed.

Conclusion

The point is that there is no excuse as to why you cannot engage in successful ADR processes simply because of a difference in language. Build trust, form a team, and engage in risk assessment. Alternative dispute resolution is not going anywhere; it is only getting more powerful, more prevalent, and more successful at solving legal disputes.

Hon. Zuberi Bakari Williams is an associate judge of District Court of Maryland in Rockville, Maryland. Shreya Patel is a law clerk for Judge Ivan D. Davis, who presides at the U.S. District Court for the Eastern District of Virginia, in Alexandria, Virginia.


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