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.
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:
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:
For more detail, see this post in the Kluwer Mediation Blog.
CPR Speaks Blog California last week enacted a new law that prohibits employers from requiring job applicants, or any existing employee, to enter into pre-dispute arbitration agreements as a condition of...By CPR Institute CPR