IABD – ABSTRACT

TROUBLING THREATS TO MEDIATION: THE INTRUSION OF "LEGALESE"

PHILIP TIETJEN

ENGLISH DEPARTMENT, NEW MEXICO HIGHLANDS UNIVERSITY

This paper examines how mediation, as an alternative dispute resolution format, has become threatened by the more predominant and unilateral language convention of American law. This unnecessary overreaching by legal discourse, or "legalese," is problematic because mediation has long celebrated itself as an alternative to the formal court system, because it is the individual disputant who, without an attorney, forwards their own argumentative positions and on their own peculiar linguistic terms.

The theoretical grounding for this paper relies on language scholars such as Louis Althusser and Georg Lukacs, who look at how institutions actively work to shape public impressions of appropriateness and how these impressions can be reified over time, thereby creating artificial dependencies on these impressions. Also significant is H. Paul Grice’s concept of implicature which describes how language hierarchies are established by tacitly informed knowledge (i.e., legalese).

Complementing the theoretical are ethnographically collected from three different mediation centers in El Paso, Texas. Principal ethnographic methodologies included emergent design, thick description, participant observation and triangulation (Lincoln & Guba, 1985).

This paper finds that disputants show a measurable reluctance to assert an active role in the mediation session. Too often, disputants still choose to bring attorneys with them. This paper hypothesizes that individual disputants still cling to the reified notion that the power of dispute resolution remains the exclusive purview of lawyers. This paper concludes by proposing that mediation should incorporate self-reflexivity as part of its regular discursive practice, so that it may see itself less as a weaker cousin to American law and more as an equal in need only of forging its own unique properties.