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<xTITLE>Need for Clear Language Initiative to un-Babel Our Models</xTITLE>

Need for Clear Language Initiative to un-Babel Our Models

by John Lande
November 2020

Indisputably

John Lande

Houston, We Have a Problem

I’ve said it before, and I’ll say it again.  We use rotten language to describe our ideas and theories.

Theory is important because it guides actions.  Concepts are building blocks of theory.

It’s a real problem if we use different language for similar concepts or the same terms for different things.

And boy, do we ever do that.

For example, one traditional negotiation model is called “distributive,” “competitive,” “adversarial,” or “positional negotiation,” and the other is called “integrative,” “problem-solving,” “cooperative,” or “interest-based negotiation.”

The “evaluative” mediation model includes very different elements including providing analyses of case, making recommendations, making predictions, and pushing parties to accept a specific agreement.  People use “evaluative” referring to different elements of the model.

So we have created a Tower of Babel that confuses people in our field, not to mention laypeople.

Professional jargon is helpful in some fields because it promotes communication between professionals like brain surgeons and rocket scientists.

But jargon is extremely problematic for dispute resolution because it confuses and excludes laypeople and other stakeholders.

Last week, I gave a talk for the Hastings Center for Negotiation and Dispute Resolution, How to Combine “Positional” and “Interest-Based” Negotiation and “Facilitative” and “Evaluative” Mediation.  I showed how our models of negotiation and mediation are composed of variables that are quite distinct from each other and often do not occur together in the real world.

By unbundling the variables that compose our models, we can specify our ideas and actions more precisely and clearly.  For example, we can focus on the value of expected outcomes (aka BATNA values) that is commonly the heart of “positional” negotiation” and also focus on intangible interests that are the heart of “interest-based negotiation.”  Similarly, we can specify and combine particular elements of the “facilitative” and “evaluative” models.

Here’s a video and the powerpoint from the talk.

We Can Solve Our Problem

The ABA Task Force on Research on Mediation Techniques recommended “development of more uniform definitions and measurements of mediator actions and mediation outcomes.”  In other words, we need clearer language.  And not just about mediation.

It would help to replace our models with clearer, concrete language focusing on the variables encompassed in the models.

The test should be that we should be able to “explain it like I’m a five (or fifteen) year old.”  This is important so that we can communicate effectively with people with limited language abilities.

Clearer language could:

  • Improve communication with disputants and other stakeholders
  • Help students navigate worlds of practitioners, clients, and faculty
  • Promote collaboration between researchers and practitioners
  • Provide standard keywords for research

Of course, people could use any language they want, but we could improve communication if we develop commonly-understood language about basic concepts.

We need some collective action to develop common language most effectively.  A common-language initiative could be accomplished by a committee coordinated by a major professional organization or academic institution.  This initiative might include:

  • Review of academic and practice literature
  • Discussion by experts
  • Focus groups with academics, practitioners, and disputants
  • Public forums and comments

For more detail, see this post in the Kluwer Mediation Blog.

Biography


John Lande is the Isidor Loeb Professor Emeritus at the University of Missouri School of Law and former director of its LLM Program in Dispute Resolution.  He received his J.D. from Hastings College of Law and Ph.D in sociology from the University of Wisconsin-Madison.  He began mediating professionally in 1982 in California. He was a fellow at the Program on Negotiation at Harvard Law School and the Director of the Mediation Program at the University of Arkansas at Little Rock Law School. His work focuses on various aspects of dispute systems design, including publications analyzing how lawyering and mediation practices transform each other, business lawyers’ and executives’ opinions about litigation and ADR, designing court-connected mediation programs, improving the quality of mediation practice, the “vanishing trial,” and planned early negotiation.   The International Institute for Conflict Prevention and Resolution gave him its award for best professional article for Principles for Policymaking about Collaborative Law and Other ADR Processes, 22 Ohio State Journal on Dispute Resolution 619 (2007). The ABA recently published his book, Lawyering with Planned Early Negotiation: How You Can Get Good Results for Clients and Make Money.  His website, where you can download his publications, is http://www.law.missouri.edu/lande.



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