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ELSEVIER Journal of Pragmatics 23 (1995) 93-110

From adjudication to mediation:


Third party discourse in conflict resolution *

Yon M a l e y
School of English and Linguistics, Macquarie University, North Ryde, NSW 2109, Australia

Abstract

In Western societies, a range of institutional third party roles are employed in conflict or
dispute resolution. This paper examines two of these: the traditional legal role of adjudicator
and the newer, 'alternative' role of mediator. It is argued that they can best be described and
explained in terms of institutional activity types, constituted by their linguistic and discoursal
practices, and distinguished in terms of their relative degree of control over the process, sub-
stance and outcome of the dispute. Texts taken from Australian courts and divorce mediation
sessions show how the third party's intervention and control is affected by the contextual pur-
pose of the interaction, the job being done. Judges do more than adjudicate, and mediators do
more than facilitate. Their jobs constitute a range of functional or rhetorical modes. Typically,
their interventions can also be distinguished by the degree of authoritative intervention, and
the kinds of directness and indirectness expressed.

"Disputes illuminate social process: but disputes cannot be under-


stood without knowledge of social process."
(Max Gluckman, 19/3: 636)

1. Introduction

In the dynamics of interpersonal interaction, a profound change occurs when a


dyad becomes a triad, when two parties are joined by a third. At the very least, the
focus of interaction alters, and the range of communicative possibilities widens.

This research has been made possible by an Australian Research Council Grant (Varieties of Arbitral
Discourse, No. 20722319, Christopher N. Candlin and Yon Maley) and a DILGEA Special Grant (Intereth-
nic Communication in Dispute Resolution. No 9214, Christopher N. Candlin and Yon Maley). The
research draws upon a corpus of courtroom and mediation data, in the form of (i) audiotapes and transcripts
of criminal and civil court trials, tribunals and hearings and (ii) videotapes, audiotapes and transcripts of
mediation sessions in divorce and marriage guidance in Australian courts. The corpus is supplemented by
interviews with lawyers, judges and mediators, training manuals, and non-participantobservation.
I am very grateful to my colleague, Christopher Candlin, for his comments on a draft of this paper.

0378-2166/94/$07.00 1994 Elsevier Science B.V. All rights reserved


SSDI 0378-2166(94)00030-I
94 Y. Maley / Journal of Pragmatics 23 (1995) 93-110

When, in addition, two parties are engaged in a dispute or contend against each
other, third parties frequently take on the role of dispute settler, either by throwing
their support on one side or another, or by remaining a discrete third party and act-
ing as adjudicator, negotiator, conciliator or mediator. The third party is then a per-
son (or persons) whose role it is to intervene in a dispute and play a part in settling
it or disposing of it. The third party role becomes focal for dispute resolution - focal
in the sense that, in one way or another, the 'voices' of the parties and the issues of
the matter are filtered through the third party. It must always be the case that the lin-
guistic and non-linguistic behaviour of the third party will be important, and some-
times crucial, to the outcome of the matter.
This paper will explore the nature of the linguistic behaviour/practices associated
with two third party roles in legal and legal-annexed settings within common law
systems: adjudication and mediation.l My assumption is that the roles that speakers
assume, what speakers do with their language, should be seen as beth a social and a
linguistic matter. As Gluckmann suggests, above, knowledge of social process must
illuminate any study of disputes. The study of third party roles in dispute resolution
will, then, also be illuminated by knowledge of the social processes (in this case pro-
fessional and institutional) which sustain them and of which they are an integral part.

2. Adjudicating and mediating as social processes

Adjudication comprises the traditional court processes involving a judge or mag-


istrate who decides on legal issues, rights and penalties; mediation is a structured
process involving a mediator who facilitates, but does not impose, a settlement
between disputing parties. Ideally, or in theory, a judge is empowered to decide a
dispute and impose a decision on the parties, while a mediator empowers the parties
to reach a decision themselves. Both adjudication and mediation can be considered
as activity types (Levinson, 1979): each is a set of social practices with its own
structures, participant roles, goals and values, creating for each a unique context for
discourse. Some activity types combine different behaviours, i.e. linguistic and non-
linguistic, but both adjudication and mediation are almost entirely constituted by
their discourse - adjudication and mediation are socio-legal activities performed by
words, by discourse. Levinson connects activity types to the Wittgenstein notion of
'language games', but here the perspective is taken of a mutually defining set of
social and linguistic practices, creating a discourse type. Discourse types are recur-
rent patterns of linguistic practices: the patterns of linguistic form, meaning and
structure used by speakers in social activities, such as the types of social, profes-
sional activity considered in this article, that is, keeping order and resolving disputes.
The description and explanation could include the entire dispute process and analyse
the discourse of all participants, or as here, concentrate only on the discourse which

Mediation can be practised privately, i.e. between individuals, within organisations and workplaces
or within legal or legal-annexedinstitutions. Because of the nature of the data, my concern is with medi-
ation in legal-annexedsettings, where mediation is offered as an altemative to litigation.
Y. Maley / Journal of Pragmatics 23 (1995) 93-110 95

realises one participant role, that of the third party who is performing the actual
socio-linguistic job of adjudicating or mediating.
It could be argued that adjudication and mediation are such different activities and
the settings in which they occur so opposed that no comparison would be meaning-
ful or worthwhile. It is precisely because mediation is so different from traditional
adjudication that it is currently being widely employed as an alternative mode of dis-
pute resolution. The reasons for this are both practical and ideological. Mediation is
faster, less formal, less expensive than adjudication, i.e. seeking a decision on a dis-
pute in a court of law. Mediation does not seek to apportion blame, but rather seeks
an outcome of compromise and collaboration, a win/win solution, as against the tra-
ditional litigated zero-sum result of win/lose. However, more and more within West-
ern countries both adjudication and mediation (and other activity types such as con-
ciliation, arbitration) are offered as options for litigants within the same system and
jurisdiction. So it is realistic to see them not as distinct and opposites, but possibili-
ties within a range of legal and legal-assisted activities which depend on third party
intervention for their resolution. One might then begin by suggesting what is com-
mon to the exercise of these third party roles within the activity types of dispute
resolution.
(1) There is first the obvious fact that in both adjudication and mediation, the third
party is a focus, at the very least, of the interaction, whose presence alters the
dynamics and discoursal patterns of the dispute.
(2) All third party roles in dispute resolution assume neutrality and impartiality in
respect of both the matter to be resolved and the opposing parties. It may be the
case that individual mediators, judges or magistrates, do not always achieve or
display impartiality and neutrality. Nonetheless, there is no doubt that neutrality
and impartiality are strongly regarded as ideal characteristics for a mediator and
adjudicator in common-law and other Western countries.
(3) All third party roles in dispute resolution share a clearly defined, institutional
goal - that of settling or disposing of the dispute. Sometimes, it is true, media-
tion does not have an outcome in that, unlike adjudication, the dispute is not set-
tled. Nonetheless, mediators have a professional interest in settling the dispute
and direct their energies and their linguistic behaviour accordingly. That is to
say, both judges and mediators share the larger social function of keeping order,
regulating and facilitating a range of social activities.
(4) All third party roles in dispute resolution are characterised by institutional con-
straints and options on discoursal behaviour. There is no social situation any-
where in which speakers can say anything they like, in which all meanings are
equally welcome. There is always a range of meanings, of linguistic and dis-
coursal practices, which to a greater or lesser degree are preferred or even oblig-
atory in that situation. The discoursal/linguistic practices of both adjudication
and mediation comprise a specialised, professional discourse in which all parties,
including the adjudicator or mediator, are expected or enjoined to adhere to rules
of speaking - who speaks to whom, when, about what and how much. There are
constraints on the kinds of allowable contributions (Levinson, 1979: 368). But
as in all norm-governed behaviour, the constraints are accompanied by "lee-
96 Y. Maley / Journal of Pragmatics 23 (1995) 93-110

ways" (Stone, 1968: 192) which allow some flexibility and provide acceptable
options.
The linguistic practices of adjudication are constrained by convention and law, i.e.
common law and legislation: they are based on the requirement of ensuring fair play
and enabling the judge to reach a decision. Those of mediation are constrained by
conventions established in response to professional ideology: they are based on the
ideal of achieving consensus without attribution of blame.

3. Framework for description

As discourse, then, both adjudication and mediation are goal-directed and norm-
governed language practices, integral to an institutional activity type. The task here
is to describe, analyse and compare these broadly linked discourse types. In order to
do so, it will be useful to begin the analysis on a distinction made in the sociologi-
cal and anthropological literature which differentiates modes of conflict resolution
along two axes: control of process and control of outcomes. Thus, Thibaut and
Walker (1975) suggest that adjudication is a mode of conflict resolution that rates
highly in terms of both control of process and control of outcomes. Judges are the
ringmasters, as it were, of the process; and they also decide on outcomes. Even
when there is a jury, judges have the power (within guidelines) to determine sen-
tencing. Mediation, on the other hand, has fairly high control of process but low con-
trol of outcome, since the ideology of the practice is that the disputants decide their
own outcomes. In Thibaut and Walker's scheme, process and substance are not dis-
tinguished, since by controlling the process, mediators or adjudicators are usually
also controlling the substance, i.e. the content of the dispute. However, in consider-
ing the discourse of mediation and adjudication, I shall consider process and sub-
stance separately (since they have different discoursal values) while admitting the
inevitability of overlap.
In order to view this distinction in linguistic terms and put it to work in the
description and explanation of linguistic and discoursal practices, it will help to iden-
tify the systematicity of choice involved:

CONTROL OF PROCESS the 'ringmaster' role:


who speaks to whom, in what order, and when,
who has the control of topic choice, topic mainte-
nance,
who has the power to terminate interaction.
CONTROL OF SUBSTANCE the 'substantive' role: (i.e. content)
what can be said by whom, rules of relevance and
admissibility.
CONTROL OF OUTCOMES the 'umpire' role:
who decides issue: neutral or moral evaluation
what kind of outcome: win/win - win/lose.
Y. Maley /Journal of Pragmatics 23 (1995) 93-110 97

This framework provides points o f comparison between adjudication and media-


tion. What it d o e s n ' t do, however, is explain the configurations of discourse patterns
that occur, because it does not discriminate between generalised social processes like
adjudication and mediation as contexts, by showing how the nature and purpose of
the activity going on, the participant's roles and values shape and even determine the
discourse. That is to say, control of process, substance and outcomes should be
viewed in relation to the contextual/pragmatic dimensions of the institutional activ-
ity type (Halliday and Hasan, 1985: 29; Fairclough, 1989: 146; Levinson, 1979:
368). In particular, as I hope the following discussion will show, there is a need to
relate the discourse patterns to the social/institutional purpose of the interaction.
Both adjudication and mediation are highly strategic and goal directed in their
respective discourses. While the overall aim - settling the dispute - stays constant,
the local goal or purpose differs during the process of the dispute. Adjudication and
mediation are structured processes, consisting of a number of possible phases or seg-
ments, each calling for different kinds of third party intervention. As the task of
intervention, or job, alters, it creates a different context, the participant roles are
adjusted and the discourse patterns vary. These functionally separate phases are dif-
ferently oriented in the sense that they have a characteristic tone or thrust - what
Halliday calls rhetorical mode (1985: 12), i.e. what the speaker is making the lan-
guage do in that situation (1985: 34).

4. Adjudication as a discourse type

Consider the English case of Jones v. National Coal B o a r d which became well-
known, not for its facts, but for the behaviour of its trial judge, and prompted one o f
the best-known and authoritative statements o f the legal and discoursal role of the
judge. Here are the facts, in the words of the appeal judge, Lord Denning:

"The roof of a coal mine had fallen in. A miner had been buried by it and died. The widow claimed
damages. The case was tried by Hallett J. [Judge] at Chester. He rejected the widow's claim. She
appealed on the ground, among others, that the Judge's interruptions had made it impossible for her
counsel to put her case properly. The board put in a cross-appeal including among others that the Judge's
interruptions had prevented the Board from having a fair trial." (Denning, 1980: 58)

In the Court of Appeal, the appeals were upheld, on the ground that the unfortu-
nate judge, The Honourable Sir Hugh Imbert Periam (Hippy) Hallett, had indeed
'talked too m u c h ' and asked 'too m a n y questions'. In delivering his judgement, Lord
Denning framed his decision in an exposition of the judicial role. Thus:

"In the system of trial which we have evolved in this country, the judge sits to hear and determine the
issues raised by the parties, not to conduct an investigation or examination on behalf of society at large,
as happens, we believe, in some foreign countries.2 Even in England, however, a judge is not a mere

2 Denning is being disingenuous here, in referring so vaguely to legal systems "in some foreign coun-
tries". He is in fact referring to the distinction between the adversarial systems of common law coun-
98 Y. Maley / Journal of Pragmatics 23 (1995) 93-110

umpire to answer the question 'How's that?' His object, above all, is to find out the truth and to do jus-
tice according to law ..." (1980: 60)

Lord Denning considered then the role of advocates [counsel] within the c o m m o n
law adversary system in "presenting powerful statements on both sides of the ques-
t i o n " and went on to say:

"... The judge's part in all this is to hearken to the evidence, only himself asking questions of witnesses
when it is necessary to clear up any point that has been overlooked or left obscure; to see that the advo-
cates behave themselves seemly and keep to the rules laid down by law; to exclude irrelevancies and dis-
courage repetition; to make sure by wise intervention that he follows the points that the advocates are
making and can assess their worth; and at the end to make up his mind where the truth lies. If he goes
beyond this, he drops the mantle of a judge and assumes the robe of an advocate; and the change does
not become him well. Lord Chancellor Bacon spoke right when he said that: 'Patience and gravity of
hearing is an essential part of justice; and an over-speaking judge is no well-tuned cymbal'." (1980: 61)

Here is a statement of the ringmaster and umpire role o f the judge which captures
both the institutional and the lay perception o f the ideal legal/discoursal practices o f
judges - reverberating and responsive to the contributions o f advocates, and pre-
sumably witnesses, dispensing justice by rule in an impartial and neutral way. But
despite its authority, Dennings's statement does not go far enough in order to
describe and account for the range of contributions that judges characteristically
make and are expected to make, and by which they control the process, substance
and outcomes of the matter. Lord D e n n i n g ' s remarks were appropriate - and only
intended to be appropriate - to the role o f the judge during the cross-examination
process o f a trial or hearing: an overall picture requires a wider perspective. In what
follows, I shall aim to show h o w judicial discoursal practices are shaped by their
contextual dimensions, particularly their rhetorical or functional orientation.
The extract below contains an unremarkable example o f judicial intervention,
where the j u d g e ' s role most closely approximates that set out by Lord Denning, that
of ringmaster. It occurs during the examination sequence of a trial which constitutes
a formal and public arena (Yngvesson and Mather, 1983: 66) for the exchange.

Text 1

C O U N S E L : A n d that is w h y you just did not mention [the matter] in the other court.
You just did not think it had relevance. Is that the situation?
W I T N E S S : That is so, that is correct.
C O U N S E L : And did you ascertain that it related to the police on 24 November, did
you?
HIS H O N O U R : Just a minute. Just think about this question and m a k e it a bit
clearer.

tries (such as England, Canada, America, Australia), and the inquisitorial systems of continental Europe
- a distinction which is well-known and frequently discussed in legal literature.
Y. Maley /Journal of Pragmatics 23 (1995) 93-110 99

COUNSEL: Did you see the police - did you make statement to the police prior to
24 November?
WITNESS: I do not think so.

(Please note: in Texts 1 to 5, the following conventions which prevail in English


and Australian courts, have been observed; 'Counsel' refers to the advocate, the
defending or prosecuting lawyer; 'His Honour' refers to the judge hearing the mat-
ter in court; 'the Crown', or 'Mr Crown' refers to the lawyer representing the Gov-
ernment in a criminal matter. In all Texts 1 to 8, the contribution of the third party is
presented in bold type.)

In Text 2, the purpose of the intervention is to administer rules of court which are
intended to ensure fair play.

Text 2

COUNSEL: Have a look at this (shown). Look at page two. Do you see that 'assess-
ment' ?
WITNESS: Yes, I do.
COUNSEL: Mr Brown has from police antecedents [police records] no previous
major criminal record?
WITNESS: That is untrue.
COUNSEL: It is his assessment, is it not?
WITNESS: Well, I can't -
HIS H O N O U R : You are cross-examining this witness on a n o t h e r witness' doc-
ument. W h y the C r o w n is not objecting is beyond my comprehension. It is
unfair and impermissible.
COUNSEL: With respect, if he is going to give us assessments ...
HIS H O N O U R : I do not want a speech, ask a n o t h e r question.
COUNSEL: I with respect reject that completely.
HIS H O N O U R : W h e t h e r yon reject it or not is completely immaterial, ask
another question. I might say I consider y o u r comment impertinent.
Counsel: I apologise, your Honour.

Here is strong and powerful intervention, unequivocally controlling process and


substance. Its effect is to constrain the counsel's contribution, by reference to
unstated but known-to-both institutional norms, i.e. rules of court and of evidence. In
both Texts 1 and 2, the judge asserts and orders using speech acts with clear and
unequivocal force. Rhetorically, the intervention is authoritative and decisive. The
one modality ( " I might say") does little to mitigate the judge's reprimand, which
reinforces the power structure of the situation, and its formality. Some judges are
more interventionist than others (as J o n e s v. The N a t i o n a l Coal B o a r d showed) and
some cases, because of their complexity or some other factor, call for more inter-
vention. When cases are complex and invoke a number of issues and rules of court,
then we can see a necessary modification to the ideal picture painted by Denning.
100 Y. Maley / Journal of Pragmatics 23 (1995) 93-110

The following (condensed) text comes from an Australian trial involving the ele-
ments of a criminal conspiracy. The exchanges occurred during a jury trial, during a
discussion between judge and opposing counsel about the admissibility of evidence.
This is another kind of trial situation, another kind of context; it is like a procedural
insertion into the main body of the trial, and the interaction is freer and less con-
strained than in the examination proceedings.

Text 3

COUNSEL: ... Therefore it is our submission that Mr K is able to give evidence of


what he understood H was saying.
HIS H O N O U R : You would ask him were there any relevant words meaning
that which they would ordinarily convey.
COUNSEL: I would not do that because ... I have already established that.
HIS H O N O U R : That is what I said to you before. I think you beg the question
Mr Crown. This is all going to establish a conspiracy.
COUNSEL: Yes, certainly, b u t -
H I S H O N O U R : You cannot say it is admissible. If what you are attempting to
prove is that two people are conspirators, you cannot say they spoke this way
because they were conspirators because it begs the whole question.
COUNSEL: I am not doing that. I am not saying that. I am saying that ... All of that
is already in evidence.
HIS H O N O U R : The jury may or may not accept it.
COUNSEL: Yes, I know, but that is not the point at this point of time.
HIS H O N O U R : I think you are still not meeting the objection that is troubling
me but ...

This is not an interaction between equals, since ultimately counsel must satisfy the
judge as to the admissibility of his own linguistic practices in the cross-examination
process, and the judge will decide and decide finally. There is however a strong ele-
ment of negotiation and argument in the sense of presenting views which the judge
has a strong obligation to consider. Quite frequently, other counsel join the
exchange, putting their submissions and arguments. Here, counsel do have some say,
some control over process. So in these purely procedural interactions, it is quite
common for judges to contribute, rather than intervene and the contribution is argu-
mentative ( " I f ... then ...") and subjectively modalised ( " I think ..."). Such nego-
tiative, even argumentative behaviour prompts Thibaut and Walker (1975: 22) to
argue that common law judges have less control over the dispute than European
judges, who work in an inquisitorial rather than an adversary system. European
judges are not constrained to listen to the argument of counsel, since it is the judge
or judges who ask the questions. So the type of system (inquisitorial or adversary)
provides an overall or global cultural context which profoundly affects the nature of
the third party contribution to the discourse.
Further evidence of the contextually conditioned nature of the judge's discourse
comes from an exchange in another kind of court where the judge's third party role
Y. Maley / Journal of Pragmatics 23 (1995) 93-110 101

has another function - that of arbitration. Arbitration differs from trial adjudication in
that there is not necessarily a wronged party; rather two or more parties agree to bring
their dispute (typically industrial or commercial) before a judge/arbitrator who will
decide the issue between them according to law, or his view of the law. The parties
do have some control of substance since they can agree on what is or is not to be arbi-
trated upon. So the judge's control is lessened both in terms of process and substance.
In the following text, arbitrating a wage issue under an industrial award, the
exchanges between judge and counsel make clear how much more interactive the
participant roles are, and how much more room for negotiation exists in the handling
of the matter:

Text 4

COUNSEL: Of course, that puts a penalty as it were, on the employee when termi-
nated as a result of the employer's decision.
HIS HONOUR: If I can just test that: going to an example of somebody with
18 months' accumulation, when the employee leaves the c o m p a n y the first 12
months could be dealt with u n d e r sub-c 7 and he would get an annual leave
loading for that accumulated completed y e a r ?
COUNSEL: Yes ...
HIS HONOUR: It occurs to me, M r M, that not much of this a r g u m e n t
responds to the actual terms of the interpretation that is sought.
COUNSEL: Our submission in relation to the interpretation sought as put into prac-
tice by the company is that it would constitute a breach of the Annual Holidays Act
HIS HONOUR: W h a t should I do? I am here certainly on a m a t t e r of inter-
pretation and that means I am not concerned with merit matters. It seems to me
that m a y b e I am concerned with interpretation generally ... W h a t I am really
asking, am I being encouraged by the parties to deal with the problem as it
emerges or do I just deal with the very limited problem that is p u t ?

This is not authoritative intervention, but discussion and negotiation. Despite the
fact that the arena or setting is both public and formal, the judge's discourse is per-
sonal, and modalised to a degree which admits a fair amount of uncertainty ("It
occurs to m e " , " W h a t should I do? ...", " W h a t I am really asking ...", " d o I just
deal ...?"). In his interactions with counsel the judge speculates, seeks guidance and,
in effect, shares power with counsel. These agenda-setting and topic-defining seg-
ments or phases within a hearing are functionally different from other parts of the
hearing and the prevailing institutional norms about behaviour in these segments or
phases control the relationships between the participants and therefore the judge's
discourse. In other parts of the hearing, the nature of his contribution is more tradi-
tional, in the sense of being in conformity with the usual perception of adjudication:
during cross-examination, he remains silent and intervenes only to rule on the admis-
sibility of evidence; at the close of the hearing he gives his decision, which contains
modalised and modulated statements e.g. ('I think that X must do Y' or 'It seems to
me that the interpretation of the rule is Z ...' (Maley, 1985: 169).
102 Y. Maley / Journal of Pragmatics 23 (1995) 93-110

The following text is taken from a hearing in a lower court, a magistrate's or


local court. Local courts are the coal face of the law, where minor offences are
dealt with, or hearings held to determine whether referral to a higher court is nec-
essary. A huge range of humanity passes before the magistrate's bench and a great
range of petty and serious offences are dealt with. The exchange occurred in a
hearing in which the offender, a child, i.e. a young person under the age of 18 years,
was charged with stealing a car at Kings Cross, a lively and notorious district of
Sydney. He was in the company of another young offender, an engaging young
prostitute, with a taste for prescription drugs. The magistrate grants him bail in
these terms:

Text 5

MAGISTRATE: All right? If I give you the opportunity of going back to


Anglewood [a children's home, half-way house for wayward children] you're not
going to upset me and er ... cop out there, are you?
CHILD: No Your Honour.
MAGISTRATE: And that doesn't mean to go to Kings Cross chasing attractive
young ladies under the influence of Serepax around the streets of Sydney. You
understand that?
CHILD: Yeah.
MAGISTRATE: Er, you're sixteen, and she was only sixteen, but with great
respect, she was streets ahead of you. That was a different league that young
lady. Now if you go back to Anglewood and stay there until you come back,
until you're required to come back, I'll give you bail conditional and I'll not
require any other person to be involved but it's up to y o u to abide by it. Now I
mightn't be here if you break the bail, but it'll be on the record and you might
not get another chance and er you've been committed on a few occasions. This
is not and I say that on the record, obviously to you, not the most serious offence
in the world and you may have a good defence to it. So I'd hate to see you muck
up your future ... by going into custody by not complying with bail. You under-
stand that?
CHILD: Yes, Your Honour.
MAGISTRATE: As far as you're concerned the lights of Kings Cross have
been turned off for a while.

We note here the considerable informality of the magistrate's speech. He speaks


directly to the offender and expresses explicitly the moral values that he believes his
office should uphold. He is making offers, even bargaining, not constructing argu-
ment ( " N o w , if you go back ...", "I'11 give you bail ..."), and appealing to the
offender's response to his offer of trust ( " Y o u ' r e not going to upset me ... and cop
out, are y o u ? " ) . Offers and bargaining are not common speech acts even in rela-
tively informal lower and children's courts. While the magistrate appears to be offer-
ing the offender a choice, there are no real alternatives here for the young boy and
there is no doubt that the magistrate is controlling the outcome of the matter ( " t h e
Y. Maley / Journal of Pragmatics 23 (1995) 93-110 103

lights of King's Cross have been turned o f f " ) . 3 Not all magistrates are as informal
and direct as this one, but the moral component of the role frequently comes to the
fore, both in sentencing and in discharging a matter. When a magistrate exercises
leniency and does not sentence, he or she feels it necessary to underline and rein-
force the moral and community values that underlie the actions of the person before
the bench. The magistrate is no longer neutral but a spokesperson for what are per-
ceived to be desirable values and behaviour. Sentencing is the segment or phase of
the hearing which provides a context for the expression of moral values. Judges in
higher courts also frequently use the sentencing phase or segment of the trial as an
occasion for moral evaluation, particularly in criminal matters. No doubt this is
because the link between morality and law is clearer in criminal law than in civil
law.
To sum up: It is not the case, as is often assumed, that judicial discourse is solely
or even predominantly a matter of assertion and rule-giving, of statement and deon-
tic modality, non-evaluative and formal in character. Such linguistic and discoursal
practices are characteristic only of some aspects of the judicial role. It is more real-
istic to see a range of rhetorical modes that are systematically related to different
contextual or pragmatic contexts; in particular the kind of goal-directed activity or
law job. Judges question, suggest, command, argue, evaluate, or criticise as the roles
of adjudicator, interrogator, mediator, negotiator are called for during the proceed-
ings. They are not always neutral, but interventionist and partial in matters perceived
to involve fair play or community values.
Phillips (1990) has also pointed out that judges in some courts in the U.S.A. play
a number of discoursal roles, even including mediation. From her description, courts
in the United States (or the ones she describes) appear to be less formal in both a
structural and stylistic sense, than English and Australian ones. However that may
be, I think it is important to make the point that a shift in discoursal role, or footing
(in Goffman's (1981) sense) typically corresponds to a functional shift in these insti-
tutional settings. The role shift constructs, or at the very least is accompanied by, a
functional or rhetorical shift.

5. Mediation as a discourse type

In mediation, the adversarial structure of the formal court is absent. It does how-
ever have a processual structure in that successful mediation ordinarily goes through
four phases: issue identification, generation and evaluation of alternatives, selection
of an alternative and development of an implementation plan (Ingleby, 1991: 13).
The arena is informal and private: only parties and mediators conduct the process;
ideally, there are no observers and strict confidentiality between all participants is
observed. Correspondingly, the tenor of the interaction is more informal: typically
first names are used, and mediators are instructed to use everyday language. There
are parties instead of defendants or plaintiffs, and technical law terms have no place.

3 Harris (1984) has shown that the local courts are also the place for threats.
104 Y. Maley / Journal of Pragmatics 23 (1995) 93-110

There is still a dispute, but now the clients are empowered to solve it themselves,
with the mediator acting solely as a facilitator. It is claimed for mediation that medi-
ators have a very high degree of control over the process o f mediation, very little
control over substance and no authoritative (my emphasis) control over outcomes
(Silbey and Merry, 1986).
Consider the following text: there are two mediators, one male, one female, medi-
ating between a separated couple. The issue is access to the children of the marriage,
who are in the wife's custody.

Text 6

W I F E : What I want is ... that ... I think ... he picks the children up on a Friday night
and returns ...
MEDIATOR 1: J u s t a m i n u t e , c a n I m a k e a suggestion ... t h a t y o u call the
access b e t w e e n the c h i l d r e n r e a s o n a b l e access w h i c h usually is ... t h a t the access
is w h a t y o u a g r e e on. It m a k e s it possible f o r y o u to m a k e c h a n g e s f r o m time to
time as s o m e t h i n g c o m e s up ... er ... let's say if y o u w a n t an off day, y o u w a n t to
celebrate or something.
Wife: We have actually ... really, w e ' r e quite ... No, there's no problem ... I just like
to have it ... Is that wrong to want to have it ...?
MEDIATOR 2: W h a t I t h i n k I h e a r y o u s a y i n g is t h a t y o u w a n t it f o r m a l i s e d
not so m u c h f o r t o d a y a n d t o m o r r o w b u t d o w n the t r a c k .
W I F E : Yeah. (to husband) I believe you today ...
MEDIATOR 2: Is t h a t w h a t I h e a r y o u s a y i n g ?
Wife: Yeah, that's what I ' m saying. (to husband) I know you d o n ' t want to hurt ...
H U S B A N D : It'll ... What am I going to do? Pick them up at 4.30 instead of 6.00?
W I F E : I dont know what y o u ' r e going to do. (cries) I dont know ... I d o n ' t know.
That's what I ...
H U S B A N D : A n y others? If you want it in writing ...
W I F E : yeah, you know, as far as I am concerned, we d o n ' t have a problem with
access. H e ' s very ... he's good ...
MEDIATOR 1: C o u l d I j u s t go b a c k to explaining a b o u t the a c c e s s ? I t h i n k
t h a t it w o u l d be a g o o d idea f o r y o u to say t h a t t h e r e s h o u l d be r e a s o n a b l e
access a n d t h e n say " p r o v i d e d this is usually u n d e r s t o o d to m e a n " a n d t h e n say
something.
W I F E : Yeah, that would be good.
MEDIATOR 2: A n d t h a t m e a n s t h e r e ' s the flexibility.
Wife: And I would like that.

This text shows that a mediator can control or attempt to control the process of the
dispute. Mediator 1 is clearly persistent in his efforts to keep the discussion on track
and relevant to the agenda he has set. His intervention cannot, however, be authori-
tative or decisive; it is tentative, hedged: a set of modalised suggestions ( " C o u l d I
...", " C a n I ...", " I think it would be a good idea ..."). His attempt to control is
inexplicit. The second mediator cooperates in this effort by reframing the w i f e ' s con-
Y. Maley / Journal of Pragmatics 23 (1995) 93-110 105

tribution (What I hear you saying ...) but the wife had not actually said it and it is
doubtful that the longer view, as suggested ( " d o w n the track"), was really her con-
cern. Reframing or reformulation is an important strategy in a mediator's semantic
and discoursal repertoire. Its ostensible use is to clarify and make explicit issues of
concern to the party or parties. It is nearly always modalised ( " I think ...", " y o u
seem to be saying ...") for mitigation and facesaving (Brown and Levinson, 1978).
However, as Thomas has pointed out, reframings or reformulations serve to deny the
party " t h e possibility of escaping into indirectness and pragmatic ambivalence"
(1985: 767). They are an important way in which the mediator controls or drives the
process and often, as well, the substance of the matter, that is, moves from a ring-
master to a substantial role. Here, both mediators are steering the topic (access) and
the control of the topic by reframing the issue more widely and thereby formulating
a situation as a problem which hadn't been apparent to the wife before, and attempt-
ing to ensure that the matter is negotiated and settled before the next topic is raised.
Mediator 2 also interprets the suggestion made by Mediator 1, by commenting
" T h a t means there's flexibility", thereby adding support and approval to his sug-
gestion. So mediators can also make a contribution to the substance or content of
the process, even if that contribution is tentative and modalised and inexplicit and
indirect.
The exchanges between the participants have a fluidity and naturalness typically
absent in the courtroom. All participants use everyday language, with features famil-
iar to spoken colloquial language such as vagueness and lack of explicitness ('say
something'), incomplete clauses and overlapping and turns. The structured turn-tak-
ing so typical of courtroom procedures is breached. Ideally turns are ordered - first
one party speaks and then the other, and there are strong constraints against inter-
ruption, but in practice, there are many overlaps and out-of-turn contributions. So
while there is both control of process and control of substance involved in the dis-
coursal practices of mediators, it is inexplicit and mitigated and sometimes the medi-
ator must work hard to keep control.
The differences in the modes of controlling process are apparent in this next text:

Text 7

MEDIATOR: So you're convinced that you had an agreement to split the


property.
HUSBAND: Oh yeah, for sure!
MEDIATOR: And you don't think]
WIFE: [John's always p r e s u m e d it's 50/50, I ' v e never agreed to that. It would be
ridiculous to agree to that, for all the reasons I ' v e given you so far.
9-SECOND PAUSE
MEDIATOR: So I'm wondering, how are you going to resolve that?
10-SECOND PAUSE
WIFE: Well, I would have thought ... that care and concern for the children and their
future would have entered into it, seems I was wrong.
MEDIATOR: Could I ask the same question from both of you ...
106 Y. Maley /Journal of Pragmatics 23 (1995) 93-110

This is control of process of a rather different kind. The rules of turn-taking have
broken down when the husband remains silent after a statement from his wife that
expects a confirmation or denial, i.e. that he did or did not just presume there was an
agreement. When the mediator intervenes after a 9-second pause - which is quite
noticeable, even uncomfortable - it is simply to throw the problem back at the pair:
" h o w are you going to resolve that?". When a response does come from the wife
after another lengthy pause, it does not go to the problem, so the mediator tries
another tack. Mediators cannot force the participants to take their turn, (as the judge
was able to do, in directing the counsel in Text 2 above), but they can manipulate
silence in order to place pressure on the clients to make a contribution. The interpre-
tation of silence in disputes raises quite another issue. Judges cannot compel wit-
nesses to speak, just as mediators cannot compel the parties to the dispute to speak
if they don't wish to do so. But in formal legal settings, there are established princi-
ples for the interpretation of silence, when witnesses do choose not to speak, or are
unable for various reasons to do so (Kurzon, in press). The same interpretations are
not available or relevant in mediation. Also, in mediation, control of turn-taking and
topic relevance is slighter, less direct and often inexplicit.
Perhaps the strongest constraint upon the discourse of mediation is that it should
be blame-free. So the deontic modals 'must' and 'should' have no place in media-
tor semantics. This is in stated contrast to the discourse of legal processes which
typically seek to attribute blame or fault (there are exceptions, for example in no-
fault divorce law). But that is not to say that mediation, any more than adjudication,
is value free. The difference again tends to be both a matter of degree and of explic-
itness. We saw, in Text 5 above, how a magistrate can admonish a defendant, lay-
ing upon him an explicit burden of moral responsibility. Text 8, below, an exten-
sion of Text 7 (above) also expresses a moral value within a mediatory context. The
mediator is concluding the discussion of how the couple's assets should be divided.
His attempt to clarify the issues has only resulted in a misunderstanding; the wife
feels that he is talking about side issues, which forces him to make his values
explicit.

Text 8

M E D I A T O R : I'm getting the feeling that you, that both of you, but you Mar-
garet certainly, you need to do quite a bit of homework, finding out what sort
of money you'd get and also that business I was talking about, where you both
work out what your non-pocket money expenses are, and what free money
you've got to spend.
WIFE: You're talking about, you know, us having pocket money, you know, I ' m
talking about the children. Don't they .... aren't they top priority?
M E D I A T O R : Yeah, I'm not saying they're not. Like I see the money spent on
the children being like an essential expense, essential in an abstract sort of way,
but it's also essential in the sense that yon agree that the children are the top
priority ... But generally, r m thinking that it wouldn't be fair, if one of you, like
had $500 a week pocket money and the other was ...
Y. Maley / Journal of Pragmatics 23 (1995) 93-110 107

In all family and divorce mediation, the explicit baseline, endorsed by legislation,
is that the interests of the children should be paramount, so naturally mediators will
strive to achieve that result. However, apart from such built-in values, mediators will
differ in the extent to which they make apparent their judgments about what is fair
and unfair, and the extent to which they are prepared to present options, i.e. sugges-
tions, to the opposing parties which represent what they feel to be fair solutions or
compromises. In Text 8, the misunderstanding occurred because the mediator was
following standard mediatory practice of getting the parties to evaluate their needs in
the Issue Identification stage of the proceedings. However in phrasing it as 'pocket
money' and 'what you would like for yourself' the mediator was in effect placing
items on the agenda (i.e. controlling substance) that were irrelevant to the parties'
perceptions of the issues. Faced with this misunderstanding or failure of communi-
cation, the mediator must justify his suggestions and does so in terms of fairness or
equity.
To sum up: Like judges and magistrates, mediators call upon a discoursal reper-
toire which is contextually attuned and constrained, and which is sensitive to func-
tional shifts during the mediation process. The private and confidential nature of the
process makes it difficult to judge how diligently or flexibly mediators attend to the
kinds of discoursal constraints or follow the kinds of options that their training and
philosophy prescribe. But there is little doubt what their aims are: mediators ques-
tion (but never interrogate), explain, use unevaluative terms (except in relation to the
children of a marriage or relationship), suggest options (but never recommend, i.e.
placing obligations by 'must' and 'should'). Their ability to control the process, sub-
stance and, indirectly, the outcome of the matter derives from the use of heavily mit-
igated and modalised language which never confronts the parties but by suggestion
and reframing moves the process and the topic in the desired direction. As third par-
ties, they do have considerable power (Dingwall, 1988: 165), but it is informal and
inexplicit.

6. Modalities of adjudication and mediation

Texts 1-8 showed a perhaps surprising variety of modalities in both adjudication


and mediation. Broadly these can be described in terms of Halliday's distinction
(1985: 334) between modalities in terms of modalisation and modulation. Modalisa-
tion expresses degrees of uncertainty as probability and usuality, modulation
expresses degrees of obligation and inclination (1985: 335). Both modalisation and
modulation realise the viewpoint of the speaker, but may be expressed either subjec-
tively or objectively. Modalisation, expressing degrees of uncertainty and probabil-
ity, either objectively or subjectively, strongly flavours the language of the judge and
the mediator in the data illustrating this article. I believe that this feature is not a
reflection of these texts only. It has been remarked elsewhere (Maley, 1985, 1989,
1993, in press; Kurzon, 1986: 60) that judicial discourse employs a complex mixture
of modalities of probability, uncertainty and obligation. The reasons for this are both
historical and functional. The historical role of judges in the common law courts of
108 Y. Maley I Journal of Pragmatics 23 (1995) 93-110

medieval England was to advise the monarch, to give their opinion, after a process
of reasoning, on the correct rule of law to be applied. Their delivered judgments are
partly a justification of the reasoning employed in reaching the decision. Each judge
has the right, if not the obligation, to deliver his or her own judgment in the matter,
so inevitably the judgment reflects the judge's own 'voice', i.e. point of view in
terms of assessment of values, probabilities, and legal rights and obligations. A num-
ber of writers have commented on the intensely subjective and individualistic char-
acter of common law judgements, at least in England and Australia (Wetter, 1960;
Paterson, 1982; Goodrich, 1986; Maley, 1989). As the texts above show, this sub-
jective and individualistic flavour is carried over into courtroom interactions with
counsel ( " I think ...", "It occurs to me ...", "It seems to me ...", "the jury may or
may not ..."). On the other hand, since the judge's role is to decide and make rulings
on issues of process, substance and outcome, modulation frequently occurs ( " Y o u
cannot say that ...").
The reasons why mediators choose to employ the modalities of probability and
uncertainty so frequently lie not in the history and structure of the institution, but
elsewhere, in the goals and ideology of the profession. Their need to control the
mediation session in order to bring it to a successful outcome is in considerable ten-
sion with stated goals of the profession: to be neutral, impartial, and simply a facil-
itator. Their ideology requires that the parties be empowered, but they themselves
need power in order to control the process satisfactorily. Texts 6-8 showed how the
mediators struggled to present options and direct the parties' behaviour while at the
same time attempting, by reframing, to present these options as chosen and desired
by the parties. Mitigating and face-saving strategies, such as modalities ( " C a n I
make a suggestion ...", " I think ...", " I ' m wondering ...", " I ' m getting the feeling
...' ') are helpful in resolving the tension between principle and practice, allowing the
mediator to interact with the parties in a non-directive and non-confronting way, and
drive the process along.

7. Conclusion

Overall, the picture that emerges from this survey of two discourse types in arenas
of dispute resolution is less of contrast and difference than of clines or degrees, in
particular degrees of explicitness of control.
It is the degree of authoritative intervention and the variety and range of interven-
tion that distinguishes judicial from mediatory discourse. Judges do more with their
language because they have more jobs to do - not surprisingly in an old, intricate
rule-governed institution which performs a great variety of social functions. The
control that they exercise is formally bestowed, by legislation and established con-
vention, as are the rules of law which they define and apply, so their intervention is
explicit and open to negotiation only in limited, mostly procedural, situations. Medi-
ation is comparatively simple procedurally and structurally. As a profession and a
discourse type, mediation is focussed on control of process, and its linguistic prac-
tices are primarily developed for that purpose and are quite tightly constrained.
Y, Maley / Journal of Pragmatics 23 (1995) 93-110 109

Because the process is intended to empower the disputing parties, mediators rarely
intervene as authoritatively and decisively as a judge is not only able to do, but
required to do. Typically, mediators exercise their control indirectly, by inexplicit-
ness and mitigation. Insofar as mediators attempt to control or influence substance
and outcome, there is even greater recourse to indirectness.
These are, of course, only general trends which derive from features of the nature
and purposes of adjudication and mediation as social and institutional activities and
processes. Practitioners and arenas of operation differ. Within mediation, for exam-
ple, Silbey and Merry (1986: 7) comment that mediator settlement strategies tend to
be describable along a cline of behaviour, stretching from the therapeutic at one end,
and the bargaining at the other. Practitioners with social science backgounds tend to
favour the therapeutic approach; those with legal background favour the bargaining
approach. The situation is more like a cline than a set of sharply demarcated prac-
tices. On the one hand, there may be very little discoursal difference between, say, a
lawyer mediating in a commercial dispute, and a judge negotiating in a wage claim.
At the other extreme, there would be a considerable difference in the degree of
explicit, authoritative intervention between a mediator in a community dispute and a
judge in a criminal trial. In short, judges occasionally behave like mediators, but
mediators never - or never should - behave like judges.
Mediation is a new profession in Western countries, but it is growing rapidly. To
the extent that its practices are norm governed, and informed by established goals
and values (Rawls, 1971: 55), mediation is already an institution. In Australia and
elsewhere, some mediation is mandated, i.e. required by legislation and enforced by
the courts and Government agencies such as Legal Aid (Ingleby, 1991: 27). It is
inevitable that such developments will lead to further institutionalisation of the
processes and its practitioners, particularly in what may be termed organisational as
distinct from private mediation. One is tempted, indeed, to recall some features of
the early development of English law, where Equity developed as a corrective to the
rigidity of the common law courts. Now the borderline between equity and other
parts of the law, particularly in terms of standardisation and institutionalisation of
practices is either hard to draw or irrelevant. Will this be the fate of mediation?

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