On the need for mediation in the translation industry

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 »  Articles Overview  »  Business of Translation and Interpreting  »  Business Issues  »  On the need for mediation in the translation industry

On the need for mediation in the translation industry

By Łukasz Gos-Furmankiewicz | Published  08/16/2013 | Business Issues | Recommendation:
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Quicklink: http://wiki.proz.com/doc/3880
Author:
Łukasz Gos-Furmankiewicz
Poland
English to Polish translator
 
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What is special about translation dispute resolution?

More like: what makes it worse than most litigation already is.

Unless all of: the translator, agency and end client are based in the same legal, business and cultural environment, conflict resolution is bound to be quirky. And complicated. Speaking of which, dispute resolution tends to be complicated even when it's not quirky, and quirky even when everybody involved lives in the same town. Here, they're more likely each to live in a different country if not on a different continent.

Oh, and sometimes best business practices come into play even in courts, as you can't really solve a business dispute without resorting to them if it's any more complex than forwarding an invoice to the bailiffs with the court's stamp on it. Good luck arguing business practices from foreign continents. It already takes months of waiting when statutes and court rulings are inquired about through diplomatic channels by a court that needs to look at foreign law.

Court resolution of any business dispute is thus hardly optimal. Even without cultural differences, there's a lot of costs involved, a risk of losing on a technicality, a long way through appeals to eventual enforcement (if any) or defeat of claims, and a guaranteed zero-sum game of winner takes it all. Unless he can't prove all, then he takes what he can prove, but there's little in the way of adjustment to individual circumstances that can be done.

But with the added differences like I outlined above? Even if a party had the stomach for that type of litigation, the bills are quickly going to outrun the value of the dispute. I love litigation, I've rarely done other things in terms of legal practice. But enforcing a USD 1000 worth of claim across borders, forget continents? You gotta be kidding me.

But just in case you weren't kidding me, if I actually were a practicing lawyer, I'd probably have to charge you in the neighbourhood of USD 200 per hour, and I would probably spend a full day or two on the case, if not more. A lawyer just can't make a reasonable, mutually acceptable fee on a small claim that takes many hours to process. And I really am not kidding you here. I have had to tell people: 'you'll be better off on all counts if you forget about it right here and now,' as advice. And it was good advice.

What else? Translation bills. What? You thought you can just write in English to courts around the world? Let alone any other language? Forget it. Everything's gonna need to be translated, usually by a guy with an official stamp. At a modest rate of USD 0.10 per word, USD 1000 will be exhausted by 10,000 words, which is about 20-30 pages of court writing, and you can't realistically expect to get away with less than 10.

Note that you'll need to translate stuff even if you forced the other guy to agree to California jurisdiction because the state of California won't send bailiffs on a plane to Europe. The same goes for the courts of England and Wales or the judicial arm of La République. Perhaps EU payment order procedures can make things easier across internal borders, but as long as your case is more complicated than an unopposed invoice, you're still in for a lot of 'fun' (including lawyer fees and obligatory translation, as well as experts who hold degrees awarded by other schools with different mindsets).

What's better about settling?

Like, everything? Settling has a couple of decisive advantages:

  • Cost avoidance
  • Outside-the-box solutions
  • Room for win-win
  • Relationship isn't destroyed
  • Relationship can actually be improved
  • You can learn people skills
  • It can actually be kinda fun
  • Participation in decision-making inspires compliance

Interlude: Before we go on, what does mediation look like?

A mediator, being an impartial third party, is introduced into the process by the parties of the dispute. The mediator either sits at the table with the parties all the time or meets them in separate caucuses of equal timing or at least equal time theoretically available for each party. This is up to the individual mediator or the parties. The mediator does not normally propose solutions, although he sometimes actually does that, especially when a party doesn't want to lose face in making a certain proposal personally. The parties generally come to the table on their own (so this minimal readiness to talk is a prerequisite of mediation), but the mediator makes sure they actually get around to the talking and keep talking until they reach a solution, but without pushing them. Again, it's up to the parties to resolve the dispute, although the mediator will ask probing questions or questions that are hints, or otherwise help direct the course of the parties' 'assisted negotiation'.

Now on to the benefits, many of which can actually be achieved sometimes by the negotiating parties without involving a mediator. This may be true even where only one of the parties has the 'mediation mindset' and the other is simply receptive to the idea. Also, with time, the presence of a mediator may stop being necessary for parties who have acquired some experience in amicable dispute resolution – at all or within the context of their specific business relationship with that particular partner.

COST SAVINGS

There are filing fees and other processing fees throughout court proceedings and subsequent collection. File a law suit? Pay. Call an expert? Pay. Appeal? Pay. And so on. Also the bailiffs can take a huge chunk. Possibly the loser pays it all, but the loser's assets are limited (as a litigation-battered debtor is unlikely to have particularly deep pockets) and how sure are you of the win anyway? Even if you achieve your victory on paper, the loser can still bankrupt his way out of the full amount.

If you settle right away, you will likely have to give on some of the value in dispute. But you will not be paying court fees, bailiff fees, expert fees, lawyer fees, losing time, taking a liquidity risk or reputational damage if the stakes are big relative to the size of your operation. Also, how much is your anger and frustration worth to you?

And, let me tell you one thing, in confidence: sometimes splitting the contentious $1000 on the spot and moving on is the most economically rational solution. All the more so if you take yourself and your business partner collectively here: the problematic $1000 remains in your relationship (in a 50/50 distribution).

Also, none of you two stands to pay the further $2000 (say, $3000 total) that courts and lawyers will run up, just so that the winner could take the measly $1000 and recover some of the expenses. I'm pretty sure there'd enough non-recoverable expenses to make it thoroughly not worth it.

No matter how your business partner may have messed up, as long as he's still willing to co-operate, you're better off letting him off the hook with a couple hundred than spending and risking thousands just to have your field day and avenge yourself (or not, that's the 'cool' part).

Of course, in mediation, we try to arrive at solutions more acceptable to human psychology than such a mechanical 50/50 cut.

THINKING OUTSIDE THE BOX

The court can rarely order anything more than a monetary award. In it, the court is limited to awarding all of it, none of it, or anything in between. Plus costs perhaps. Unlike what some people may think, the court will not come in and sort out your damaged legal relationship in the most equitable way possible, forget most intelligent.

A textbook example when teaching about the benefits of mediation goes like this: Two pharma companies, each of them after some 2000 bananas or oranges or whatever other fruit it is. Conveniently, there are only 2000 such bananas available, and neither company wants to budge. They can compete (and the seller will profit), split 50/50 informally, flip the coin, try and convince the competitor to withdraw. The perspectives don't look stellar, eh? Incidentally, this also reflects what a court would be able to do in a commercial dispute: the winner takes it all, the loser loses it all, perhaps there's an 80/20 or 70/30 or other such 100-sum division in a limited range of circumstances (e.g. partially proven claim or contributory negligence). But that's it.

Now, the student negotiators each have a data sheet. If they eventually notice the part that says which part of the fruit their company needs, for example either the pulp or the skin, they can bring up the subject with the other 'company', which, conveniently, happens to need the other part. (Which means they can actually use 1 proxy to conduct the transaction with the seller and put up only 1 peeling factory, but this is not the type of information you'll find on the student's sheet.)

Also, while a court can only rarely mandate specific performance, a settlement very well may. Here's an example specifically from the translation industry:

Client disputes some things in the translation and wants changes.
Translator sticks to his guns and says the translation is good. Gets anxious about the pay.
Agency mostly just wants the problem to go away. Doesn't want to lose the client, but it might very well not want to lose a good translator (who might be key to not losing other clients or even, in fact, this one).


The 'court' solution here would be to mandate free changes or throw out the claim.

Here's what a skilled mediator would do:

  • find out what's important to each party (like what they really want, launching a deeper probe than just the parties' official positions), and
  • find out what each party is willing to sacrifice (or simply do for the other party, especially for a compensation, there's no need to get melodramatic here), and
  • find out what the parties consider to be equivalent benefits and concession in this situation.

Sample mediator probe:

Translator doesn't mind additional work for adequate payment or may even be somewhat eager to take it, as long as the request doesn't offend his professional dignity, like admitting an error that doesn't exist. There may still be some details regarding the rate and deadline to be arranged for such work, but the fundamental readiness is here.
Client is ready to pay and wait a reasonable amount for the additional work. Client decides that he only really needs the changes requested by the client's editor or reviewer but doesn't need to escalate the linguistic dispute.
Agency is probably relieved to hear that there might be a way to avoid losing the client without harming the translator relationship, and, after all, without taking the reputation hit in admitting errors that may very well not exist (which, after all, does affect the agency's reputation).
Note: most likely the client isn't involved in the mediation, but the agency simply finds out that the client just wants the changes and is not interested in pressing the alleged errors.


ROOM FOR WIN-WIN

Let's make a round-up of benefits for everybody if the mediator puts together a proposed agreement on the basis of what he knows, or if he prompts the parties to work it out gradually on their own:

  • Translator's reputation comes out intact. In fact, the other participants probably realised how important reputation is to a good translator. There may be more careful with the 'errors' in the future.
  • Translator gets paid for the additional work. Just doing free changes to silence the client about the alleged 'errors' could look like a pay-off, but paid work does not. And it pays.
  • Client has his changes implemented as requested. This is about the only benefit for the client here, other than perhaps not being charged any rush fees, but again, this is all that the client really needed here.
  • Agency preserves both relationships: with the client, and with the translator.
  • Agency doesn't have to suffer the reputation hit from admitting error or the uncomfortable situation of admitting a failure to serve its client according to the contract.
  • Agency earns some mark-up.
  • Agency comes out of this looking like responsible grown-ups who solve difficult situations in a level-headed way, which benefits both relationships.
  • Nobody pays court fees, expert fees, lawyer fees or anything of the sort, or has to wait the long times it takes to litigate an issue. Neither does anybody lose time testifying, taking affidavits, planning strategy etc.

Mediation really is the powerful tool that enables all of the above to happen. Most of all, it enables the parties to avoid the typical sum total of 100: 50/50, 80/20, 20/80 or whatever else it is. Note that this doesn't guarantee equal benefits or losses for everybody involved. Sometimes it has to 70/80 (150 total) so that it can avoid being 50/50. And sometimes, it may even have to be 40/90 (130 total). Being open and, let's use the word, somewhat compassionate, can help parties make concessions that are small to them so that others can avoid taking losses that are big to them. The parties will benefit more if they quit the adversarial, pie-sharing mentality – 'we' and 'they' and cutting out the largest chunk of the existing pie possible – to pool their resources and bake a new, larger pie together. This will often require unorthodox thinking and sometimes unorthodox distribution of benefits so that we can achieve something (for example we may have to get over the fact that the other party makes much, much more as long as we still make significantly more ourselves than in the standard situation).

PRESERVING RELATIONSHIPS BONDING

Like marriages that have been through some rocks, business relationships are strengthened by overcoming difficult spots together and learning to resolve conflicts in an amicable way. At a minimum, mediation respects the interests of everyone involved. But that can be taken further and mediation can also respect the people, their feelings, their dignity. And avoid jeopardising the fruit of their hard work which is their existing business relationship.

But, I would encourage potential mediation participants to look beyond the simple avoidance of a negative. We don't only avoid losing a partner. Not always, but quite often we also have an opportunity to strengthen the bond. This doesn't really happen in court, but here, in mediation, we can do it. We can turn the challenge into opportunity like good entrepreneurs (and resourceful people).

PEOPLE SKILLS

By people skills I don't mean soft talk, I mean substantive skills like intelligent conflict resolution, some of which are very valuable to business people. Mediation involves a third-party mediator precisely because the parties don't expect to achieve satisfactory results on their own, at least not as easily as with the assistance of an impartial but helpful third party.

However, solutions are not decreed by such a mediator to passive parties. The quality of solutions depends on the creativity of the participants of the process, and the feasibility of the ultimate resolution comes from the parties' willingness to settle. In fact, also the legitimacy of the settlement derives from the parties themselves and their liberty to contract, rather than from an official judicial authority (the mediator is not one). This is a by-product, but the process can be expected to be an educational experience and opportunity for personal growth. Again, growing together enhances the bond between business partners.

FUN

Come on, wasn't it fun when we talked about bananas and pulps and skins? This is a fun intellectual exercise. Exercising one's emotional intelligence and playing diplomat throughout the process can't not be fun, either. Unless we're a bunch of sad faces that like to litigate. The fun, too, enhances the bond.

COMPLIANCE

Don't customised contracts work better than general statutes and regs in business? Isn't negotiation better than having to abide by some Rules That Must Be Obeyed? Similarly, parties are more likely to respect a settlement they could take part in creating. The settlement is their child. They feel responsible for it. If not, well, at least it doesn't come with a bailiff's stick.

But why should I?

Okay, I guess some people may still not be convinced. After all, the example above can be reduced to more or less this: the client stops talking about the errors and everybody is happy, no? What if we really feel strongly about an issue? What if the other party is a non-paying crook or a lousy 'professional' who can't do the job as agreed?

Like I said above, translators are agencies are often located in different countries, different cultures. Those often come with at least a little different approaches to translation, so it's not easy to agree on what's the best solution. They may also follow different business practices and communicate in somewhat different ways in general. The who should do what gets really complicated. This in addition to the trouble of cross-border litigation, let alone enforcement.

If a dispute needs pressing, for example because the other party is a sleazy crook that doesn't have a shadow of a legitimate point, then I guess it needs pressing. But I personally find that most points aren't as black and white, they are not as culturally independent or logically necessary as one might think. There's always room for some gentle peace-making once the .45 Peacemakers are back to their holsters.

Besides, try and find out what's different. Nobody says you have to commit to mediation forever if you simply try once or twice. And I'm pretty sure that if you try once or twice you will appreciate the benefits. Just a word of caution: mediation obviously can't be a way out of habitually letting your business partner off the hook if he won't do 100% or pay 100% of what he agreed to do or pay. You'll still need to let some guys go.

What else can I do?

Apart from mediating your disputes, you can also encourage others to give mediation a chance. In many cases, it's not that people don't want to mediate (or settle); they just don't know that they can't. It's like with those bananas: you probably need to be a genius or just do the exercise a second time to find out about the pulps and skins and come up with splitting the fruits. And you need to break free of quite a couple of inhibitions to pursue non-fifty-fifty solutions. Other people may need your help if they are to discover mediation.

Also, my understanding is that Proz.com is currently at least tentatively looking into arbitration of translation disputes (which is generally also better than court litigation for many of the same reasons, but also the fact that the case-solver is going to be someone who knows the industry and not only the law), and mediation has already popped up. You can voice your interest and your support, and chances are that experienced and respectable people from the translation world, with good people skills and outside-the-box thinking ability, may be needed to serve as mediators.

Finally, even without mediating, you can break free of value sharing and of adversarial-style dispute resolution (or even negotiation of any kind) and try collaborative, value-building solutions that put emphasis on what more can be achieved together, in collaboration instead of confrontation.

Think what you can do for the other party. Think what the other party can do for you but can't realise yet. Think what savings you can make if you share some processes or what added assurance you can gain if you repeat them. Think, for example, about other-than-monetary benefits. Try to be on the same team. When you're on the same team, any dispute is an internal dispute (a 'family dispute' even), not litigation material.


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