Linguistic Parameters of the Mediation Discourse

Middle-East Journal of Scientific Research 15 (8): 1092-1096, 2013 ISSN 1990-9233 © IDOSI Publications, 2013 DOI: 10.5829/idosi.mejsr.2013.15.8.11499 Linguistic Parameters of the Mediation Discourse Alina Gennadyevna Chernyshenko and Oleg Alimuradovich Alimuradov Pyatigorsk State Linguistic University, Pyatigorsk, Stavropol Region, Russia Abstract: This article focuses on the specific linguistic parameters of the mediation discourse. The study of intertextual interaction between different discursive formations contributes to the understanding of the inner structure of mediative speeches and statements. An in-depth study of the linguistic side of the legal mediation process will help to elaborate more efficient strategies for solving conflicts and making mediation process successful. Such parameters as subjectivity and terminological density are introduced to shed some light on how different participants of mediation construct their discourse, whether they use neutral or highly specific lexical material, whether they are passive, impartial or active, etc. This article addresses the need for research on discourse characteristics for further analysis of specific mediation strategies used in different types of alternative legal dispute resolution. Key words: Discourse Mediation Terminology Terminologization Intertextuality Subjectivity Discursive model of mediation Discursive formation Discourse strategy INTRODUCTION The analysis of the discourse of mediation is impossible without a clear definition of its general and The field of alternative dispute resolution emerged in specific parameters. In this article we have made an response to the need for finding alternative way to solve attempt to give a description of some specific parameters conflicts as the courts were overloaded and could not of the discourse of mediation (MD) such as terminological handle all the cases. Besides qualitatively some conflicts density, intertextuality, discursive formations, did not fit into the boundaries of the existing judicial subjectivity. We hope that it will help to move the system. In comparison to a judge or an arbiter, a mediator research on ways of handling the complex interpersonal does not pass any judgments but impartially facilitates dynamics during mediation to a more advanced level. dialog between the two parties involved in the dispute Let us consider the individual parameters of MD in and it is up to them to come to an agreement [1]. the following sections. A mediator assists in developing options for and achieving a mutually agreed resolution but he does not Terminological Density: We base our further make a decision for the parties. Now mediation is a considerations on the provision that MD implements popular way of resolving disputes between people, specialized discourse models to achieve specific organizations, states or any other communities [2]. purposes, therefore, a considerable part of its lexical Success of mediation depends greatly upon such component is represented by terms. Mediation factors as a) understanding of the goals of mediation by terminology is an open set of technical words or the conflicting parties, b) adequate strategies used by expressions which denote the core concepts of the participants, c) individual communicative behavior. mediation practice and are used in mediative texts, Since mediation is a discourse-centered practice, an documents, during the process of discussion of the case in-depth analysis of the linguistic side of this process with the parties involved, in the legal dispute and decision seems critical for streamlining mediation and making it a making. For example, different mediation styles use more effective alternative to court proceedings [3]. different terms for denoting official request for providing Corresponding Author: Chernyshenko, Pyatigorsk State Linguistic University, Kalinina avenue, 9, 357532, Pyatigorsk, Stavropol region, Russia. 1092  Middle-East J. Sci. Res., 15 (8): 1092-1096, 2013 mediation services (claim, application, appeal). following additional offenses if this matter is not resolved Mediation texts are also characterized by specific before trial? Do counsel for both parties agree to the terminology used for designating the participants of waiver?” [7]. the mediation process. E.g. “The parties have agreed to As can be seen from (1) and (2), terms occupy a the appointment of Mr. N to serve as mediator in this greater part of the legal text. The complexity of certain dispute. Party A and Party B understand that the mediator legal concepts demands a corresponding complexity of is an independent contractor and not an agent or the technical vocabulary, a great many qualifying phrases employee of USA&M and is not serving as the attorney may be required in order to express a concept with the for either side. The mediator may not have any financial or necessary precision. These two extracts also differ in personal interest in the outcome of the mediation and respect of terminological density, which refers to the must disclose any circumstances which create a degree to which a linguistic unit is related to a domain- presumption of bias or cause a delay in the mediation specific concept. The parameter in question is usually process” [4]. calculated based on term frequency and the bias of However, it is worth noticing that the MD, though frequency [8]. being a part of the legal discourse (LD), differs from other S. Shelov suggested one of the simplest ways for legal discourse practices in respect of terminological calculating terminological density by summing the indexes density. The language of the LD is extremely precise, of its subterms [9]. technical and defies misinterpretation, so terminology is an essential part of legal texts and it is hardly possible to If a term is a composed one and can be divided into paraphrase or omit terms in LD. B. Shartel remarks that subterms, its terminological density is calculated by “the lawmaker sends his message over wide reaches of summing the corresponding parameters of its space and he hands it down through indefinite stretches subterms [8]: of time. These facts require that the lawmaker, above all speakers, transmit his message in a form which cannot T (Private ADR provider) =T (Private provider) +T miscarry or be lost to view” [5]. By contrast, the process (ADR) of alternative dispute resolution is less formal than a standard process in the courtroom because of the variety If a term is motivated and its meaning can be derived of informal verbal means implemented in mediation from the meanings of other terms, the terminological procedures – from conflict discussion at a mediator’s density is calculated by summing the corresponding office to on-line negotiations which do not include strict parameters of all the terms (including subterms) that official regulations for statements and speech formulae. are necessary for bringing out the “motivation” of Therefore quantitatively terms are more frequently found the original term [9]: in traditional legal texts. We compared the terminological density parameter T (Damages) =T (money) +T (compensation) based on the following two extracts: a mediator’s opening statement (#1) and a judge’s speech during a preliminary Such calculations have come under serious criticism hearing (#2). because even though they give a good approximation of #1“If for any reason either you or your ADR provider terminological density, still they do not directly reflect the feel that a separate meeting is necessary for any reason, parameter in question because these calculations are such as the need to address or unearth a confidential based on superficial statistics [8]. issue in depth, each of us can request such a meeting. Legal mediation is a relatively new form of conflict Now, let’s review and sign the agreement to mediate and solving, therefore such a linguistic process as thanks again for your participation. We believe that your terminologization is common for mediation discourse. effort will be rewarded” [6]. Terminologization is the process by which a general- #2 “[Mr./Ms.] [name of defendant], you have the language word or expression is transformed into a term right to make the prosecution prove in a preliminary designating a concept in a language for special purposes hearing in this court that you probably committed the (LSP) [10]. In addition to technical terms and expressions, offenses with which you are charged. Do you understand the lexis of the mediation documents is also characterized that right? Do you give it up? As part of this waiver, do by the use of common words with specialized meanings you also agree that the prosecutor may accuse you of the [11]. 1093  Middle-East J. Sci. Res., 15 (8): 1092-1096, 2013 Table 1: Terminologization in mediation and legal terms Word/Phrase Primary Meaning Meaning of a Word as a Mediation/Legal Term (after terminologization) Damages Injury or harm that reduces value or usefulness Money that the losing side in a lawsuit must pay to the winning side to make up for losses or injuries. Person A human being (man, woman, child) An individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government; The lexical component of the discourse model of legal People involved in a conflict; mediation is based on neutral vocabulary as well as on Attorneys; mediation terminology (the latter includes general legal Official representatives (relatives and colleagues). terms, psychological terms). All of this gives us reasons for considering “terminological density” as one of the The mediator is always an individual, while the important specific parameters of the discourse of parties can be represented either by one person, attorney mediation. and relative or by a group. Therefore, we classify the parties of MD in the following way: Objectivity and Subjectivity of MD: The object of MD is alternative dispute resolution (ADR). At the present stage Conflicting/ non conflicting participants; of development ADR is realized by means of a set of Voluntary/ court-ordered; specific discourse practices, which give different Individual /group of participants. interpretations of the specific MD features. As it has been observed above, MD is closely connected with LD Voluntary participants are parties which agree to practices and, as a result, at the ontology-level falls into participate “in good faith and believe that a mutually a great number of conceptual models illustrating various acceptable resolution can be accomplished with forms of ADR (on-line or real mediation, round table talks assistance from a neutral mediator” [13]. These are usually or closed negotiations). non-conflicting participants. Voluntary participants also According to E.A. Kozhemjakin, subjectivity tend to use pragmatic and cognitive strategies aiming at (or presence of discourse participants) is a universal smoothing conflicts and reaching resolution as soon as discourse parameter. Traditionally discourse involves at possible. least two participants – the producer (speaker) and Participants of MD are active and passive at different interpreters (discourse listeners) [12]. E.A. Kozhemjakin stages of mediation process, e.g. the parties are passive believes that discursive practice involves reflective during the mediator’s opening statement but become activity of its “authors” and in this respect the discourse active when the actual discussion starts. Discussion is is directly related to its subject. These are not full-scale the vital part of the mediation process and, while MD is dialectic relations, as the subject of discourse has unfolding, the parties begin to use different cognitive, sufficient freedom to follow, interpret and transform the communicative and pragmatic strategies for supporting rules of discourse [12]. their position and interests. Although there are always three subjects of MD Every participant of MD carries out a certain role (two parties and a mediator), the subjectivity of MD is still which can't be changed during the “discourse unfolding” a very peculiar issue for linguistic analysis because there (e.g. a mediator always stays neutral and cannot get can be a great number of possible combinations of parties involved and start defending the interests of a certain representatives: party). The full description of mediator’s competences is given in one of the main mediation documents, the “EUROPEAN CODE OF CONDUCT FOR MEDIATORS”. These can be summed up as follows. Mediators must be competent and knowledgeable in the process of mediation. Relevant factors include proper training and continuous updating of their education and practice in Fig. 1: Above illustrates the general subject structure of mediation skills, having regard to any relevant standards mediation discourse or accreditation schemes. 1094  Middle-East J. Sci. Res., 15 (8): 1092-1096, 2013 Table 2: Behavior of the participants during the “unfolding” of MD Participants of Mediation Opening Statement Mediator works with party A Mediator works with party B Discussion In case of a conflict* Decision making PARTY A - + - + + + MEDIATOR + + + + + PARTY B - - + + + + Active position + Passive position - Operating with discourse strategies Neutral Both variants are possible (according to the unfolding of the discourse) *Applicable to court-ordered (non-voluntary) parties. Mediators must at all times act and endeavour to be According to M. Makarov, discourse formations seen to act, with impartiality towards the parties and make the adequate functioning of communicative and be committed to serve all parties equally with respect cognitive components of the discourse possible. The to the process of mediation [14]. communicative component includes all possible positions and roles which discourse provides to speakers The parties, however, are not impartial; they try to (participants). The cognitive component comprises the benefit from meditative decisions, so they can use knowledge structures as verbalized in a discourse manipulative tactics, denigration and implicit or explicit message. The principle of “family similarity” is relevant for intimidation to suit their individual purposes. Their discourse [16]. The formal resemblance of legal discourse speech is mostly imperative while a mediator stays practices reflects to a great extent the idea of “discourse neutral. Below, we give a phrase expressing an appeal to family similarity”. use strategy X, as it could be said by different Stability and mutual permeability of discourse participants of MD: formations are provided by another discourse parameter – intertextuality. Various intertexts (for example, all types Party A (command): “Strategy X is going to be of mediation texts including regulations, establishing implemented.” rules, texts of statements, performances and contracts) PartyB (obligation Statement): “We need to try participate in the processes of discourse derivation and Strategy X.” mutual loan. Considering the “intertexual interaction” Mediator: parameter in relation to the mediation discourse, it is possible to draw a conclusion that MD is remarkable for “Why don’t we try Strategy X?” its ability to be an intertexual donor and to participate in “Do you think strategy X would help us in this intertextual investment. Below, we introduce an example situation?” with borrows from arbitration texts. “Perhaps we should take a look at one of these alternatives.” “ATTORNEY’S AGREEMENT FOR MEDIATION “I wonder if we could run into any roadblocks on On behalf of___________________________, I request our current course?” [15]. that __________________________ act as mediator in the above case and agree to be bound by the Rules of This example shows that a mediator avoids direct Mediation, which is attached to the Order of Referral for imposing of certain ideas, but accepts and respects other Mediation entered in this case” [3]. opinions, although he is not obliged to share them. Intertextual interactions of MD are explicitly illustrated through multitudinous loans of arbitration, Discourse Formations and Intertextuality: We view the psychological and court vocabulary and patterns which structural parameter of DM in two dimensions. First, there are used in mediation texts. are certain discourse formations that make the realization of DM possible. The second point is that structurally DM CONCLUSIONS is an “unfolding model” that appears to correlate with the various stages of the mediation process (cf.: the opening In this article, we have explored several specific statement, introduction, discussion, etc.). linguistic parameters of the MD. 1095  Middle-East J. Sci. Res., 15 (8): 1092-1096, 2013 Following M. Makarov (2003), we have assumed that 2. International Arbitration Rules, April 1, 1997, the discursive parameters are vital characteristics of a American Arbitration Association. discursive model. They let us distinguish between 3. Alimuradov, O.A., 2007. Intentional and Dynamical adjacent discourses and give us a material for further Nature of an Individual’s Concept-sphere. analysis of meditative strategies used in different types of Anthology of Modern Science and Education, alternative dispute resolution. 3(2): 9-12. In particular, we have focused on such parameters as 4. Collection of mediation documents by a mediator terminological density, intertextuality, subjectivity, Damon Meeks. Date Views 29.06.2013 discursive formation. http://www.meekslawfirmllc.com/Mediation_Docu First, we assumed that mediation discourse differs ments.html. from other legal subdiscourses in respect of its 5. Shartel, B., 1951. Our Legal System and How it terminological density, as court and arbitration language Works. University of Michigan Press, pp: 629. is more precise, technical and formal. Terminology of MD 6. Organizational Leadership Journal. Mediation is mostly loaned from other LDs. However MD is Introduction Script revision. Date Views 29.06.2013 characterized by heavy terminologization from the regular http://strategicplanner.wordpress.com/2008/05/24/ literary vocabulary. mediation-introduction-script-revision/. Second, we have discovered that the structural 7. Script: Waiver of Preliminary Hearing. Date Views parameter of MD can be considered in two dimensions – 29.06.2013 http://www2.courtinfo.ca.gov/protem/ as the process of discourse “unfolding” and as a courses/prelim/waiver-script.pdf. structure consisting of several discursive formations. 8. Harman, D., 1992. Ranking Algorithms. Information Third, we have observed that DM acts as an Retrieval: Data Structures and Algorithms, intertextual donor for some legal subdiscourses, but still 5(2): 363-392. it loans more than shares with other discourse models. 9. Shelov, S.D., 2003. Term, termness, term definitions. And finally, we have characterized the participants of Philological Department of the Saint Petersburg State the mediation process, classifying them according to University, pp: 277. such criteria as a) active or passive behavior, b) 10. Universal Electronic English-Russian Dictionary. voluntary or court-ordered, c) individuals or a group of Date Views 25.06.2013 http://universal_en_ representatives, d) conflicting and non-conflicting parties. ru.academic.ru/2377882/terminologization. Hopefully, this research will contribute to the 11. Alimuradov, O.A. and M.N. Latu, 2006. The elaboration of more efficient strategies for solving metaphorical nature of the term as a translation commercial and social conflicts. problem. Pyatigorsk State Linguistic University Bulletin, 4: 24-27. ACKNOWLEDGEMENTS 12. Kozhemjakin, E.A., 2011. Electronic Encyclopedia “Discoursology”. 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