Speak Justly: Mediators and the Plain Language Movement

Just Court ADR by Susan M. Yates,Jennifer Shack, Heather Schiewe Kulp, and Jessica Glowinski.

As a follow-up to last week’s post about interpreter services being required for all mediations, I’d like to pass along a fascinating article titled The Politics and Power of Plain Language by Jane M. Siegel, a professor at Thomas M. Cooley Law School (hat tip to Richard Zorza for highlighting this article in his recent post). Siegel references The Plain Writing Act of 2010, which requires federal agencies to write all new informational or filing documents, including any “letter, publication, form, notice, or instruction” in language that is “clear, concise, well-organized, and follows other best practices appropriate to the subject or field and intended audience.” Federal agencies must comply by October 11, 2011.

Siegel argues that attorneys, who swear to support and defend the U.S. Constitution, should be advocates for the use of plain language in courts, even courts not subject to The Plain Writing Act. As she describes, “there is no freedom or justice when the language of law and government is incomprehensible to a country’s citizens.”

Court mediators, too, should focus on plain language as a means for ensuring a level playing field for all parties. This takes many forms. Certainly, mediators should be conscious of their own language, ensuring they are not speaking in legalese, even if attorneys are present with parties. But mediators can also review court forms to see if they would make sense to a person without a legal background and make suggestions for changes. The Plain Language Action and Information Network’s implementation Guidelines may be helpful in any review process.

Most importantly, mediators can serve as translators, even if parties speak the same language. Mediators can use skills like reframing, summarizing and reflecting back to ensure parties are describing their stories in ways the other parties can hear and ultimately understand. Without this crucial translation, conflict can remain dissonant, preventing parties from even hearing the same thing, let alone coming to a consensual agreement. Using plain language is the responsibility of every servant of the court; though not all of us swear an oath to uphold the Constitution, we all have an interest in providing access to justice for every potential litigant.

                       

Heather Scheiwe Kulp

Heather Scheiwe Kulp is a lecturer on Law at Harvard Law School and a Clinical Instructor at the Harvard Negotiation & Mediation Clinical Program. Prior to joining Harvard Law, Heather was a Skadden Fellow at Resolution Systems Institute/Center for Conflict Resolution in Chicago. While there, she designed court- and government-based conflict… MORE >