'Subject To Interpretation' is a weekly podcast that deep dives into the topics that matter to interpreters.🎙 Hosted by Maria Ceballos Wallis
This week we speak with Barrie J. Roberts on mediation.
Barrie J. Roberts has worked as the Alternative Dispute Resolution (ADR) Administrator for two southern California Superior Courts, working with judges, court staff, attorneys, neutrals and community mediation organizations to provide high-quality alternatives to trial. She is the co-creator, along with Maria Ceballos-Wallis and Marjory Bancroft (Cross-Cultural Communications) of Foundations in Conflict Resolution and ADR for Interpreters, the first online training of its kind to provide ADR training for interpreters. Barrie also created “Mediation as a Second Language” (MSL) courses to combine ADR and ESL for international students at UC Berkeley. Her publications include Conflict Resolution Training for the Classroom: What Every ESL Teacher Needs to Know, University of Michigan Press, E-Book Single (2020). Before ADR, Barrie was a staff attorney with Legal Services of Northern California, Inc.
'Subject To Interpretation' is a weekly podcast that deep dives into the topics that matter to interpreters.🎙 Hosted by Maria Ceballos Wallis
This week we speak with Barrie J. Roberts on mediation.
Barrie J. Roberts has worked as the Alternative Dispute Resolution (ADR) Administrator for two southern California Superior Courts, working with judges, court staff, attorneys, neutrals and community mediation organizations to provide high-quality alternatives to trial. She is the co-creator, along with Maria Ceballos-Wallis and Marjory Bancroft (Cross-Cultural Communications) of Foundations in Conflict Resolution and ADR for Interpreters, the first online training of its kind to provide ADR training for interpreters. Barrie also created “Mediation as a Second Language” (MSL) courses to combine ADR and ESL for international students at UC Berkeley. Her publications include Conflict Resolution Training for the Classroom: What Every ESL Teacher Needs to Know, University of Michigan Press, E-Book Single (2020). Before ADR, Barrie was a staff attorney with Legal Services of Northern California, Inc.
Welcome to subject to interpretation, a podcast, which takes us deep into the topics that matter to professional interpreters. I'm your host Maria. Today, we're going to talk to my friend and colleague Barry J Roberts about a hot topic, which affects interpreters in the us and beyond dispute resolution. Barry J Roberts is a former attorney with a master's degree in teaching of English as a second language and a master's in dispute resolution. She's also been a superior court administrator for various Southern California superior court, and also her publications include conflict resolution training for the classroom. What every teacher needs to know from the university of Michigan press welcome Barry.
Speaker 2:Thank you, Maria. Happy to be here.
Speaker 1:Well, for full disclosure, you are the co-creator along with myself and Marjorie Bancroft of the course foundations and conflict, resolutions and ADR for interpreters. And that was the first ever online training of its kind to provide ADR training for interpreters. You and I didn't know each other before the pandemic, but since the beginning of the pandemic, we have worked together for many, many hours, I dare say. And that came about because you wanted to teach interpreters about mediation. Tell me about this.
Speaker 2:Well, this was a longstanding dream of mine to teach interpreters about mediation based on various experiences. I had good and bad, uh, with interpreters during mediations I conducted.
Speaker 1:So let's get down to the basics and start talking about these things that you wanted interpreters to know about. And, and of course we always begin with, um, with the golden rule, which is that you can't interpret what you can't understand. So help us understand mediation. And, uh, actually the let's start with the alphabet soup of mediation, which is ADR CR mediation. Tell us what all of these things are and why we should know, want to know about them.
Speaker 2:Well, it is an alphabet suit, but let's break it down. Um, conflict resolution is a general umbrella term that covers, guess what resolving conflict of it applies to almost any context. Um, and the main, the main tools are negotiation and mediation, which we'll talk about more in a moment now, when we apply conflict resolution to legal settings, we, it alternative dispute resolution. And the easy way to remember that is the a for alternative stands for alternatives to trial. So it's not only court settings, but it could be also special ed, um, maybe workers comp, other areas where we're trying to keep cases out of court. So the main tools for ADR are also negotiation and mediation, but also settlement conferences, sometimes mandatory settlement conference and also arbitration, which is all I'm gonna say about that. Now you need a different guest, a different podcast to talk about arbitration
Speaker 1:<laugh>. So where do we encounter these ADR processes?
Speaker 2:Well, we encounter them in, um, many areas of, uh, courts in the us and elsewhere, um, in areas of civil family, probate, mainly and small claims, unlawful detainer evictions, those kinds of cases.
Speaker 1:Now, are they also, um, do we encounter some kind of mediation or conflict resolution used outside of the court system?
Speaker 2:Well, yes, indeed. Um, there are many community mediation centers throughout the us and throughout the world. Um, and there are also, um, specific mediation OBU kinds of processes in many industries
Speaker 1:Who participates in a mediation. And why would they want to do that?
Speaker 2:Okay, well let me just say in a, what people should be picturing in a mediation, um, is a neutral third party. And let me just say neutral is, um, a cultural way of looking at mediation because O other cultures have different ideas about who this third party ought to be neutral or not neutral or somewhere in between, but for our purposes, it's a neutral third party who is helping the other parties in the dispute, negotiate their dispute. So if you can imagine the two parties starting to try to negotiate with each other to resolve it, they can't agree on anything except for one thing that they need help. So they agree to ask a mediator to help them resolve their dispute and do what they could not do on their own without one
Speaker 1:Now, Nope, go ahead.
Speaker 2:Well, I was going to say that sometimes the, the neutral mediator is helping the parties to the dispute themselves, sometimes their attorneys, if any, and sometimes the whole group, which is a lot, uh, which should be of interest to interpreters, how many people could be in the room
Speaker 1:Now, just for clarification, this neutral party doesn't have any decision making power in or any also vested interest in the outcome of this resolution.
Speaker 2:Exactly so neutral and impartial and no decision making power. Exactly. Even if a judge is serving as the neutral third party, for example, in a settlement conference or in a mediation that maybe we have a lot of retired who are excellent mediators, they are not there in their role as a decision maker.
Speaker 1:Now we're in the middle of still, unfortunately in the middle of this pandemic and many legal processes have been moved to online processes even here, um, in Georgia where I'm based. Um, there's a collaboration with one of our magistrate courts with the one of the local, um, law schools to provide mediators for landlord tenant and eviction cases, um, online. And, and this is something that we are really going to see a lot of in any case all over the United States as, um, this pandemic progresses. Have you seen the impact, um, that this pandemic, or can you talk to us about the impact this pandemic has had on in person and online mediations?
Speaker 2:Well, it's a fascinating situation that we're in because before the pandemic, um, there were basically two camps. Uh, one was let's look to the future and start moving everything online. And the other was absolutely not. Mediation requires the personal face to face touch. We need to build rapport. We need to look into everybody's eyes. We need to feel, you know, and, uh, you know, because mediation is an art and, uh, as well as a science and, uh, there were people who said, no, absolutely not. It cannot work. Then the pandemic struck and it was either online or nothing, and very quickly mediators have adapted beautifully and figured out ways to even make, um, online, remote mediation, even better than face to face in some ways. So it's a very exciting and possibly silver lining. If I may say,
Speaker 1:Well, very early on into the pandemic I myself, um, who are, I'm also a mediator here in Georgia, um, was given the opportunity to take an online course, to learn more about ODR, which is online dispute resolution. Tell us what it actually looks like.
Speaker 2:Well, it probably will look very familiar to, to interpreters because, or, or to anybody, because it looks like a zoom call, which we've all gotten used to with our families and friends in various ways. So there's the mediator. Uh, there are the parties, there are the attorneys, if any, in their boxes and the mediator can put people in breakout rooms for private caucuses, for example, or just to wait while the mediator is talking to others, uh, they can share documents back and forth. Um, they could even use a whiteboard to brainstorm solutions if we get that far. So, um, it's, if you've taken an online course through zoom, or you've just talked to friends and family at Thanksgiving, it's it's should be quite familiar to you. How ODR would work,
Speaker 1:What about benefits or advantages that, um, that we encounter with this new modality?
Speaker 2:Well, it's interesting. We always say that, um, mediation is an informal process and you can't get more informal than, uh, being able to wear your pajamas, at least on the bottom. It being cozy at home, being comfortable in your setting. Um, it's very nice for parties who are, who are new to the legal process. They're not in some conference room, uh, that they're not familiar with or, or a jury room, an empty jury room at the court they're home. So that's one nice thing. Another nice thing is, um, that we, at least I'm, I'm talking to you from Los Angeles. I'll just say one word traffic. So it's so much,<laugh>, it's so much more convenient for people to get together throughout Los Angeles and throughout the world. So those are two big advantages. The other is sometimes, you know, this face to face business is a cultural and personal decision and it, it doesn't always, um, help move the negotiation mediation forward to be face to face. The buffer can actually help in many cases.
Speaker 1:Yeah. It seems that sometimes when, um, the mediators actually use different tools in terms of how they deal with the different parties. Sometimes they keep them together at the beginning of a session. Sometimes they know that there's a lot of animosity between them and they know that that's really not gonna solve anything. So they actually work with them separately. So this in and of itself allows people to see each other, but at the same time does create that B buffer that you're talking about.
Speaker 2:Yes, exactly. Right. And it, it's another, um, new way of thinking about what we're trying to do in mediation, in terms of how we bring people together to improve understanding. There's more than one way to do that.
Speaker 1:What about challenges though? I, I imagine that, you know, the one thing we've seen with not just court, but medical interpreting, and education is access to technology. People have different levels of access to technology and different all, and also different, um, actual technical abilities in terms of their expertise and being tech savvy. What other challenges do we encounter when we move a mediation into an ODR setting?
Speaker 2:Well, one big challenge is related to the technology because if people need assistance, uh, that really impacts the confidentiality and the privacy and the safety of it. That is a huge issue. The other thing is that the mediator may lose some control the mediator. We say the mediator controls the process, the parties control the outcome, the substance, and it's very important to a mediator to control the process, which he or she may not be able to do online, although maybe pressing a mute button, uh, has some advantages we never imagined in face to face mediation, come to think of it.
Speaker 1:Yeah. That's not a bad idea at all in certain circumstances.<laugh>, but let's, let's delve a little bit more deeply into this idea of confidentiality, because I think that confidentiality part of, part of understanding what, in what a mediation is, is understanding that a media in a mediation, everything that happens in that mediation is confidential. And in addition, any communication between the mediator and the parties that is private has different, has an additional level of confidentiality. So now we have the possibility of having a mediation where I'm sitting at home and maybe there's several other people in that same location. Is that, does that create issues of confidentiality?
Speaker 2:Yes. It creates a huge issue. The, the main point about confidentiality is that matters that are discussed during a mediation for most of the time cannot be introduced at a court hearing or trial as evidence. So the mediator cannot be called in to testify. Parties cannot bring in evidence from the mediation. There are some differences throughout the country and throughout the world, but that's the general rule. So this is, this is San sank in mediation because we need people to have the feeling of safety and security, um, emotional and practical in order to have a, a, a successful mediation.
Speaker 1:Now you've been working and on one aspect of mediation and or another, since 2003, you've worked during that time in community mediation, in legal mediation. And at some point you took an interest in interpreters and the, um, service of interpreting for mediation. Why,
Speaker 2:Well, you know, before, before this, this, uh, I was a teacher of English as a second language. And so you pointed out, um, and when I was a new English as a second language ESL teacher, just by coincidence, I started to get interested in mediation. And during a course in mediation, I had a, a real, um, light bulb moment, uh, which was, I realized that what was going on in mediation was really communication and increasing understanding. And guess what, what does an ESL teacher do? Pretty much the same thing. And in a moment, we'll talk about how, what do interpreters do very similar? So I became interested in the language, the language of mediation, uh, because I started teaching it to my ESL students as a way to increase understanding and communication, and the real need to use English in a real meaningful setting, because I put them into conflict resolution role plays with people who spoke different first languages. So they had to use their English to resolve conflicts. And through that, then we went backwards and learned the idioms and the grammar and the vocabulary in order to do that. So I became very interested in the language of mediation. So then when I became, um, a, uh, an alternative dispute resolution administrator, um, for a court in Southern California, um, and I needed to work with an interpreter, I thought, oh my goodness, is this interpreter going to understand mediation? Well, is the media, is the interpreter going to understand the context, the, the terms, the context, the concepts, I don't know, turned out no<laugh> they did not. They were dutifully applying their court certified interpreter training to the mediation context, uh, which had some issues. So that's how I became interested directly in, in this topic.
Speaker 1:And, and can you discuss what some of those issues might have been so that we can maybe start to understand, um, how interpreters might need to start rethinking a little bit, not entirely, but rethinking how they approach a mediation?
Speaker 2:Right. Well, understandably, a court certified interpreter is used to a courtroom setting, the formality of it. Um, the, the specificity, um, the accuracy. I'm not saying we don't need to be accurate in mediation, but it's a more informal fluid, vague kind of feeling, you know, mediation, if you just walk by or heard it, it would just look like a conversation, but to the untrained ear. And I, but what's actually going on is a very specific process with a beginning, a middle and an end and various communication styles that are needed throughout. So it might start, um, very specifically explaining what the process is. Then there might be some kind of openness. Um, the first, the first part is just going to be a monologue. Uh, the mediator explaining what the process is to the parties, not a lot of interaction after that. There's nothing but interaction and interruptions, which is really, I have learned not an interpreter's favorite situation.<laugh>, uh, but mediators are fine with it.<laugh> we kinda like the give and take the flow. We like to have venting. We like to get things out. So we have a lot of openness. And then when we brainstorm options for solutions, again, we have a lot of openness free flow, uh, conversation, back and forth interruptions. And then at the end, we have to go back to a very specific concrete, uh, communication style in order to be very specific about what any kind of written settlement agreement would look like. Hopefully we get to that point. So there are, there's a lot of variety, um, in communication styles that are needed, plus there's mediator speak a special way that a mediator might address the parties and expect the parties to address. And I don't, I don't know how any person who has not been trained in that to understand it would, would be able to, um, interpret accurately without really understanding the purpose, the goal, the language.
Speaker 1:So there's several things that you wanted to teach interpreters, right? You wanted to teach them about the terminology. And interestingly enough, there is, um, certain types, certain terminology and mediation that is also similar to terminology that we use as interpreters, but that don't have the exact same meaning or that there are some nuances which interpreters need to understand. Can you talk about some of those?
Speaker 2:Well, I think one might be active listening. Is that a term interpreters use
Speaker 1:It? It's a term, it's a term that interpreters do use as, as, um, I guess in a more academic fashion in terms of, um, paying attention actively to what is being said so that the interpreter then understands it and then is able to render it into the other language. That's, that's how I would think that, uh, active listening is used in, in our context,
Speaker 2:Right? So in mediation, active listening is probably more active and more participatory because pretty much anything a party says a mediator is going to try to paraphrase it and check to see if that's what the person really meant. So this is, this is a kind of mediator speak. So it sounds like you're saying that interpreters do use it, but in a slightly different way, have I got that right? So that that's a kind of active listening. Have I got that right?
Speaker 1:Yeah. You got that right. We use, we really use it more internally than we use externally. Our use of active listening is not displayed externally. When we render our interpretation, our interpretation already includes the idea that we have processed that information. And of course, if we're doing active listening, and at that point, we feel that we are unable to render that because we don't understand it. They, then we will ask to clarification before we render an interpretation, as opposed to a mediator who listens and then either paraphrases or maybe uses other techniques to then verify whether they understood or, or what the person had said.
Speaker 2:Right? So maybe this is something like a false friend<laugh> we used active listening<laugh> we used active listening in similar, but not quite the same ways. The other thing that an interpreter needs to know is that when, when a mediator is paraphrasing, what they just heard the party say, it may not be what the interpreter understands paraphrasing to be, because there could be a spin to reframe it. Sometimes we say to take the poison out, because it's really not helpful to paraphrase a very, uh, negative accusatory aggressive statement. That's not gonna help, although it might be accurate, uh, the, the mediator is going to try to spin it, reframe it, to move the mediation forward. So an interpreter needs to, might be scratching, uh, his or her head. That's not what the party just said, nevertheless, because of the mediator's magic, it actually sounded right to the party. So for example, um, if, if a party says you hate me and the mediator says, it sounds like you really need to be loved and respected. And the party says, yeah, that's exactly right. Um, has the interpreter been along for that ride?
Speaker 1:So it's possible the interpreter may be scratching their head going, um, wait a minute. I just interpreted you hate me. And now this person is just completely spinning it around into it, another in another direction, but the interpreter does have to go along for that ride and just, just really be, be flexible to the nuance of mediation.
Speaker 2:Exactly.
Speaker 1:So when working with interpreters, um, what was the thing that stood out the most to you?
Speaker 2:Well, I have to say having never worked with an interpreter before, my very first experience was that the, in now I know this is wrong. Now I know the interpreter was trying to help me, but it seemed like the whole thing was about the interpreter. And I was supposed to serve the interpreter. I know it strike me dead. I know that's not what was happening, but I, I got a lot of rules about what I was supposed to do and not do. And I violated all of them, which just<laugh> speaking of conflict resolution, we needed one between us. So, uh, what, what I now see is the interpreter was trying to do his very best to provide an accurate, uh, interpretation in the context, which he didn't know anything about. Uh, so the thing that struck me is that we needed to have a chat beforehand. Now I understand that that chat is called a briefing where I explain what I'm about to do. And the interpreter explains, uh, his job and code of ethics. Believe me, I had no idea there was a code of ethics for interpreters that was an eye opener. And that's another thing our fields have in common, uh, a very strict adherence to a code of ethics, um, in a briefing I would've liked to have heard, uh, Ms. Roberts, you need to slow down and gimme a chance to, uh, interpret what you're saying. Um, I would've liked to have heard where he was planning to position himself and why his need for breaks just about everything. I would've appreciated learning beforehand. And I would've appreciated him understanding a few of the things we've talked about today.
Speaker 1:It's, it's important, for example, um, you know, one of the things that interpreters, um, should be familiar with before they walk into a mediation era really is really the structure of a mediation, which includes, you know, an opening statement, which may be an Adlib statement, but is generally based on some very, very specific guidelines.
Speaker 2:Well, that's exactly right. And actually that is a good way for an interpreter to, um, familiarize him or herself with the whole process, because that is where the mediator lays out, uh, how the day is gonna go or the hour as the case may be, uh, and, um, what the parties can expect, what the guidelines are. Uh, and so that, that is, um, pretty much standard, uh, throughout mediation. Although there are so many variations in what mediators do. I just wanted to make that point, that mediation does not mean the same thing to every mediator. However, there generally is some kind of opening statement, um, along with the need for everybody to sign a mediation confidentiality agreement. So these are part of the rituals of mediation, uh, that interpreters can expect. And a quick way to learn about it is to just go online and look for mediators opening statement. You could probably find some in writing and probably find some videos showing what it looks like. That would be a quick way to, to learn a lot about mediation.
Speaker 1:So Barry, what can interpreters do to prepare in advance to interpret an, a mediation?
Speaker 2:Well, the best thing they can do. And I know it's a lot to ask is to take a real mediation training. Uh, it's maybe 30, 40 hours. So it may be too much to ask, as I said, but then you would know pretty much everything a mediator knows, and you would figure out exactly what you need to do on your own. Um, if that's not possible, um, you could look online for various videos, so you could at least see what it looks like and get the vibe of a mediation, um, as well as some of the language and concepts. Um, if you could only read one book, as I mentioned, getting to yes, would be the book I suggest it's not specifically about mediation, but it, it provides the background. It, it helps you understand what's what the mediator is trying to do. Um, there, we also have a Facebook page interpret ADR where you can connect with other interpreters who are interested in this field. And finally, you might want to take, um, a training specifically for interpreters in alternative dispute resolution and mediation. They're hard to find, but they do exist
Speaker 1:As a matter of fact for all of our listeners. Um, as I said earlier, we, um, we barely scratch the surface with regards to, um, mediation, ADR, and also the role of the interpreter in mediation. So we're happy to announce that Barry and I will be teaming up together, this coming April through the Del lamo Institute of interpretation, and we're gonna be teaching a, another course, a 12 hour course, this time of foundations of ADR and conflict resolution for interpreters. So like I said, classes start in April. We hope to see you there. And it is Barry. Thank you so much for joining us and filling us in on this very, very interesting field. I always learned something from you, and I'm really glad that we have had a chance to have this conversation today.
Speaker 2:Thank you, Maria. It was my pleasure.
Speaker 3:So
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