Mahvash Ikram
Asian parties who take their disputes to court face language barriers that risk unfair outcomes because judges rely on interpreters who are often not up to the job, says barrister Mai Chen, the President of the NZ Asian Lawyers Association.
These interpreters can be unreliable and inaccurate, says Chen, who spoke to LawNews after the recent conference Mediating between and with Asian parties in dispute in Auckland, partly sponsored by The Law Association.
“I am concerned that everyone’s focused on access to justice, but I think that is a small issue,” she said. “I think the big issue is justice actually being done because if all the people running a case don’t speak the [same] language, you’re none the wiser if you’re not getting the right interpretation.”
Because of this, Alternative Dispute Resolution (ADR) is often a better option for Asian parties in dispute, Chen says, as lawyers who speak the same language as their client are permitted to interpret for them during mediation, rather than being forced to rely on a court-appointed interpreter.
Chen said there were many examples of court cases where Asian parties in dispute did not speak any English and the interpreters were not reliable.
On one occasion when she was representing a Mandarin-speaking client in court, the interpreter did not provide the correct translation. According to Chen, a Mandarin speaker herself, she was left with no choice but to interrupt the proceedings. “I said to the judge, ‘I’m really sorry to have to intervene, sir, but I put the question to my client and she answered ‘no’, and that was not interpreted’.” The judge allowed Chen to ask the question again and told the interpreter to have another go at answering it.
Even if competent and fluent interpreters were available, it was a challenge to capture the context, she said. “The way in which the interpretation takes place sometimes means that you lose out on nuances which are incredibly important.”
An example was a 2019 case where the defendant, from mainland China, looked straight ahead during the court proceedings because showing emotion was seen as weakness in his culture. To save face, he also chose not to plead guilty. “They went down big time because the judge said, ‘you didn’t plead guilty and you’ve shown no remorse’. But of course that had to do with cultural factors. It didn’t necessarily mean that they weren’t remorseful.”
But that was not the only issue. “There have also been instances where interpreters just simply didn’t turn up and because [court staff] didn’t want to waste the hearing time, which is very scarce of course, the hearing proceeded and I think they used Google Translate or some equivalent.”
Meanwhile, the number of cases where parties are Asian are rising rapidly and that is further congesting the already bottlenecked court system, Chen says.
Another major issue is that Asian cultures rely on verbal agreements. “The business is done on a handshake and on the basis of trust and on the basis of relationships and if there is documentation, it’s often WhatsApp or Wechat messages,” she said. This made the discovery process challenging. “Telling me there are no documents is not adequate for me to satisfy my obligations as an officer of the court.”
The case for mediation
Mervin Singham, chief executive of the Ministry for Ethnic Communities, told the conference that Asian parties took disputes to court partly because they had little information about ADR.
Singham said Asian cultures prefer settlement and mediation to litigation, but had a high level of trust in New Zealand’s court system.
Chen said Asian parties also placed high value on saving face so when offering mediation it was crucial for lawyers to explain that ADR was not a “weakness”.
“It’s actually strength and you’ll save more face if you do that, rather than ending up in court and airing all of your dirty linen.”
Chen said ADR was always preferable to going to court, but the case for mediation was even stronger in matters where both or one of the parties did not speak English. Lawyers who spoke the same language as their client could interpret for them during mediation. But where matters were before the judge, a court-appointed interpreter had to be used.
According to Statistics New Zealand, about 5% of the population either does not speak English or does not speak it at a proficient level.
Mediation could also be carried out by non-lawyers. Chen said there was immense value in more people from Asian backgrounds training to become mediators. “There are very few Asian mediators in New Zealand, and certainly very few non-lawyer Asian leaders who are mediators.”
Plans were already underway to tweak the High Court Rules to place an increased emphasis on ADR, she said. “At early case management conferences, a judge will say to you, ‘have you been to mediation?’ And if you haven’t been, ‘why haven’t you been to mediation?’ In other words, ‘get on with it’. It’s not mandatory, but it’s designed to push you in the right direction.”
Asked if it was the lawyer’s fault if a case that could have been settled by mediation ended up in court, Chen said it was very complicated to figure out. As a starting point, if the matter had reached court, judges needed to be aware of “cultural element” and needed to explicitly ask if the parties had considered mediation.
She said with the Asian population being the second-largest ethnic group in New Zealand and growing at a rate of nearly 5% each year, the justice system needed to accommodate for their needs.
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