Do you speak the same language?

Mississippi has a population of about 3 million people.  The Hispanic portion of this population is reportedly 3% or 90,000 — but we all know that there are lots more Hispanic individuals in Mississippi than a mere 90,000.  Hispanic citizens often do not respond to census because of fear of deportation, harassment or for other reasonable or unreasonable theories about what it might portend to respond.  But because this population is growing, it is very likely that every litigator will face language barriers in their practice, whether with an opposing party, a witness or his own clients.

One of the greatest mistakes counsel or a mediator can make with a client who doesn’t speak the same language is not to use a professional interpreter when interviewing the client and at every critical phase of the litigation process.  Trusting language interpretation to a family member, friend or other non-professional is a risky business, particularly when that same interpreter won’t be the one interpreting at deposition or trial.  Professional interpreters understand the difference between interpretation of language and the interpretation of questions and answers.  If you don’t have someone who understands this difference and is professionally obligated to translate language only, the question you ask may be very different from the one that’s answered.  It could make the difference in your evaluation when accepting or litigating a case.

Most litigators understand and accommodate the need for professional interpreters at trial and in deposition, but for some reason, this is largely overlooked when it comes to mediation.  Mediation is perhaps not only your best opportunity to resolve the matter to your client’s satisfaction, but is also your most valuable opportunity to solidify the partnership and understanding between attorney and client for the future of the litigation if it does not resolve.  If there is a language barrier or you are speaking through someone who is providing loose translation, as almost all non-professional translators do, you will likely loose both opportunities.  Even if your case does settle, you may find out once it’s too late for anything but a malpractice action, that your client did not understand the nuances of the settlement and is not resolved.

If you are faced with an opposing party who has a language issue, you may want to hire your own interpreter for these same critical phases, if the other party is not using a professionally certified interpreter.  It’s imperative that you know if the translation is not being conducted correctly.  You may choose to use that information as you wish, but it’s valuable information to have.

Regardless of the side of the table on which you are seated, if you’ve come to the table, you are already expending your most valuable resource, your time.  Don’t allow it to be wasted by overlooking this simple detail.