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Speak Justly: Mediators and the Plain Language Movement

Heather Scheiwe Kulp, August 25th, 2011

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.

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3 Responses to “Speak Justly: Mediators and the Plain Language Movement”

  1. Kent Lawrence says:

    Well put, laudable goal, but becoming less and less attainable? Between increasingly “technical” language – in all fields – and modern social networking communication models which dispense with punctuation, letters, and even substitute phrases with strings of letters, the future is not bright. More of a problem is the “messy” thinking which precedes the writing (or speaking). Everything is tending to “buzz” words and phrases with fuzzy content. That being said, we should all – every day – do our part to create harmony and not add to the noise.

  2. Heather Scheiwe Kulp says:

    I agree that much of our common speech is stilted and less-than-proper English. I certainly do not advocate eliminating good spelling and punctuation from our mediation forms! In fact, I think using plain language in court documents actually encourages people to read more. Usually, parties glance over language they do not understand and sign away. If they read the first paragraph and realize it’s not in legalese, they’re more likely to keep reading. The more every person understand their rights, the more democratic our system can be.

  3. I fully support your ideas and I am glad to see you particularize for mediators.
    Please join us to celebrate International Plain Language Day this October 13 https://www.facebook.com/pages/International-Plain-Language-Day/196089033788901
    and join our LinkedIn group Plain Language Advocates http://www.linkedin.com/groups?about=&gid=158634 .

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