Recently, I attended the Annual Conference of the Southern California Mediation Association. One of the workshops intrigued me as it was all about the words we use. Entitled “Words Matter: What to leave at the Courthouse Steps” , the speakers Dr. Debra Dupree and Harold Coleman, Jr. Esq. discussed how the words used in litigation are really antithetical to trying to resolve a matter.
Their presentation reminded me of a saying by Ken Cloke: “There Is no Them. There is Just Us.” Or, to put it another way, there is no us v them because we ARE them and they are us.
Litigation or being involved in a dispute is adversarial. (Indeed, the word “dispute” is adversarial!) Yet, to resolve a matter or a “difference of opinion,” the parties must get out of their adversarial mindset and into one of “we-ness” or we are all in this together and must work together (rather than against each other) to resolve the matter.
And one of the ways to do this is to think about the words we use and choose those that are inclusive or humanistic. For example, many lawyers when speaking of a case, talk in terms of it being a “battle” or being “at war.” Indeed, when they prepare for trial, they may create a “war room” where they store all the evidence and everything else, they need for trial in one place. Why not simply call it the ‘trial prep” office?
Often these “warriors” will try to settle the matter days or weeks before trial. Yet, they carry the mantle of war into the mediation. Often, they will label the “mediation” as a “hearing” and the mediator as some sort of “officer.” The mediator decides nothing but is simply there to facilitate a resolution. To label it a “hearing” carries the notion of adversity into a process in which everyone is to work together! Instead, perhaps the mediation should be called a “structured conference” or a “structured discussion” and a “caucus” as simply a “private meeting’ or a “one-on-one meeting.”
And then during a mediation, when the attorneys speak to the mediator, they will often refer to the other party as “opposing counsel” or “the other side.” When referring to the actual parties , they will use the terms, “plaintiff’ or “defendant,” “cross-complainant” or “cross-defendant.” What is wrong with using their names? To erase the adversity out of the situation and put some humanity into it, use the names of these people, not their labels. Refer to them by their first name (”Jane”) or more respectfully by Ms. So- and so (“Ms. Smith”). Everyone likes being called by their name and much prefers it to being called by a label! Be personable; not adversarial!
And when making “offers” and “demands” – which words again denote adversity- use words such as “proposals” or “suggestion” or something similar. If rejecting another’s proposal, rather than saying something to the effect that the offer/ demand is rejected and the counteroffer/demand is X, say instead, something to the effect that while I like your proposal, let me add to it by suggesting “ABC “. One thing I “learned long ago is never to say “yes, but;” rather say “yes, and.” It is a lot less adversarial.
The goal of most mediations is to find a solution that everyone can live with or one that works for everyone. To do this, the parties must work together rather than against each other.
Words do matter and so the mindset with which we approach a mediation will make the difference in ending the “difference of opinion” or proceeding onwards toward “war.” Using words that acknowledge we are all in “this” together is crucial.
There is no us vs them as we are them!
… Just something to think about.
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