Language and Culture: What the mediator brings to the table

By: Isaac Borenstein

There are many qualities and skills that make a good mediator. Some can be learned and others are innate. They include:

  • Patience
  • Appearing and being impartial
  • Good listening and communication skills
  • A "knack" for getting to the issues that separate parties
  • An instinctive (or learned) sense about and ability to relate to people regardless of their background
  • Knowledge of the law
  • Quiet leadership and wisdom

But, what about a mediator’s cultural and linguistic background? How might those factors contribute to one’s ability to successfully resolve disputes?

I recall one mediation in particular as I traveled back and forth between the parties and different conference rooms discussing a number of important issues with the plaintiffs. Everything was consistent with most mediations. What made this one atypical is that my discussion with the plaintiffs was completely in Spanish. We were fully engaged, as native speakers in a naturally flowing dialogue about the relevant issues that brought them to TMG to resolve an on-going court dispute. Our discussion in Spanish was in the presence of non-Spanish speaking counsel for the plaintiffs (and with his agreement, as well as the concurrence of the defendant). Indeed, the attorney for the plaintiffs specifically sought me out because he was aware that I am a native of Cuba and Spanish is my native language. During the mediation, plaintiffs’ counsel was "filled in" on a regular basis in English. The two plaintiffs spoke very little English. Had they been working with a non-Spanish speaking mediator, they would have either “made do” as best they could, or communicated through an interpreter. With me, they were fully engaged in communications in their comfort zone, and it was the attorney who was dependent on interpretation. But, was discussion in Spanish the only thing going on or was there more taking place than a specific language connection?

Growing up in Havana, Cuba, in the 1950's was very special and unique. As a member of a Jewish community numbering about 15,000 at its height, I was exposed to an incredibly diverse society - socially, culturally and economically. Havana has always combined the historical roots of Europe, Africa, the Caribbean, and an intense street life with much contact and exchange between friends and strangers alike. There has always been a give and take, a back and forth, and a feel that everything was up for discussion - or rather - for negotiation. Humor, private and public, has always been central to relationships and discourse between people. These cultural experiences, combined with the political strife in Cuba, impacted me in ways in which only as an adult could I begin to understand and appreciate. These experiences cultivated my ability and willingness to listen to others, to use humor to discuss even the most serious of issues, to pay attention to detail and organization of arguments, and to search for a just result. These elements and exposure to multicultural experiences became crystallized later in life in my roles as a judge, attorney and law professor. They have also helped to form me as an impartial and neutral mediator and arbitrator, and as a professional who enjoys bringing people together toward resolution of often complex and painful disputes.

The alliance between my native tongue, cultural heritage and my work as a mediator/arbitrator is not a total mystery to me, though I am not always able to fully articulate this interplay of forces; much of it is deeply emotional. I am consciously bilingual and bicultural and, therefore, highly sensitized to the import of communications and “speaking the language” of another human being. It is a unique vantage point that has emerged as useful in my personal life and professional career.

Every mediator contributes their own cultural identity with unique qualities and valuable perspectives to the process of resolving cases.  It is an influencing force whether or not the parties communicate in a different language.  Even more so to consider, cultural backgrounds of the involved parties influence the entire mediation process and the ways in which they approach and deal with the conflict.

(A version of this entry previously appeared in the TMG newsletter in 2013.)