Say What you Mean

Not What You Think You Mean

The Plain Meaning Rule in Mediation

Often times what we mean to say, or even what we actually say, comes across and is interpreted as something completely different than what we intended. This is even more evident in this the digital, or internet age. However, the lessons from long ago remain the same.

There have no doubt been many articles written and speeches made about the importance of using plain speech or relying upon the common meaning of words and terms in our conversations. Practicing attorneys understood the “plain meaning rule” to apply to understanding and interpreting legislative intent in the creation of laws. Even with these guidelines, trouble is waiting just around the corner.

I learned well over a decade ago that to garner the trust of those with whom I was mediating I had to be able to communicate with them and enable them to communicate with me as well. This simple task had to be accomplished without regard to differences of race, creed, culture, sex and sexual orientation, religion and national origin. A daunting task perhaps, but I felt confident that it was one that I could easily accomplish. After all, I had great legal and ADR training, experience and worked with people from differing backgrounds my whole life. I could surely talk to anyone. But one day the inevitable happened and reminded me of the importance of speaking plainly.

I was mediating an injury case with a plaintiff who was a slight, older woman from an island nation in the Caribbean. She was well dressed and spoke “the Kings English,” as we used to say, and I seemed to get along well enough with her. As was my habit I met with her and her attorney in private to discuss the basics of mediation. I launched into my speech about mediation and the role of the mediator as I had been taught and everything seemed to be going well.

That is, until I explained that in being a mediator, I would often present the position of the other side as the “Devil’s Advocate”. Whoops!

This sweet woman paled noticeably. Had I not known better I would have sworn that she broke out into a cold sweat. I asked if she was feeling OK, and she asked to speak with her attorney in private. . . immediately. I obliged and stepped out of the room. When her attorney stepped out he had a grin on his face and told me that we were done.

When I asked her attorney what had happened and the reason we needed to terminate the mediation, he told me that she was a very religious woman of a faith that I had no experience with and little knowledge of. It seems that when I employed the commonly used and I perceived as a commonly accepted term of acting as “the Devil’s Advocate,” she understood my statement to mean that I was in allegiance with the Devil. I requested of the attorney that I have moment with his client and he obliged, not wanting to waste the day and hopeful that I would be able to clean up the mess that I admittedly created.

I apologized profusely to her, explaining that I meant no insult by my statement. I explained that I was truly a “God-Fearing” man, and had used an expression that was commonly used to explain when a person is presenting an adverse position (the position of the “other side”), without presenting it as their own statement. I told her that I was certainly not aligned with Satan and admitted my ignorance and carelessness in the use of the term, presuming that everyone would understand it in the same manner. She started to relax a bit, and I asked her to explain for me what her particular religious belief system was about as I was not familiar with it.

I invited her to “teach” me in an effort to cause her to share and communicate with me. I asked more questions of her as a means of understanding, and certainly being careful not to phrase my questions in an interrogating or derogatory manner. Basically, I used my skill and training in the use of questioning to enable and empower her. She reacted to it favorably, thanked me for spending the time to explain myself to her, and we were able to proceed and ultimately settle the case.

The lesson was simple enough but not without cost. It took a good half hour to overcome the issue that I created, which I assured both counsel would go un-billed. It caused me probably as much duress that I did in this woman, perhaps even more. As a mediator we are not supposed to create conflict - we are supposed to help parties resolve it.

The lesson in all of this is not complicated to figure out, and this was more of a reminder to me than a new lesson: You can’t speak plainly enough. Don’t presume that a person will interpret what you are saying exactly as you intended. Even in situations where you have more in common than I did with this woman, don’t take that liberty unless invited and even then, do so carefully. In my example above, I would guess that it would have been permissible to use the phrase in the event that this woman had herself referred to me as the “Devil’s Advocate”. I used the word permissible, as even though you can get away with it, you probably do not want to.

When and to what extent is it “permissible” to relax a bit? PERHAPS when the party with whom you are having a conversation opens the door to it buy using slang or a term of art, thereby putting it into context. I emphasise PERHAPS, as it is still better by default to remain plain and clear in your speech. Let them stretch the boundaries, but don’t necessarily follow yourself.

One must be careful not to slip into the trap of relaxing their speech and ultimately demeaning themselves, or as some refer to it as “lowering themselves” to another’s level. Doing so only causes a person to become more emboldened and perhaps even more engrained in their position. They will begin to think that you are on their side or validating their position as the correct one. Coming back from that and obtaining concessions in a mediation setting may not be impossible, but it will certainly have become more difficult as a result.

This article does not warrant too deep a dive into a discussion of doing research on the background of the parties with whom you are mediating as a means of preparing, but it does warrant a brief discussion of how to initially gauge your speech to ensure that you are communicating properly. My first suggestion would be to look to the nature of the action itself for a guide. If you are mediating a work-related inujury on a construction site, you will certainly need to use different speech than you might for a mediation involving a corporate merger gone south, or a professional negligence matter.

Strange as how this is an article on the use of appropriate speech and I feel the need to clarify what I just said! Don’t misunderstand or read my last statement to indicate that you should presume that those involved in a workplace injury dispute on a construction site are any less educated, informed or eloquent than those involved in the corporate merger. The point is perhaps you should not approach them differently, at least initially. You may consider initially speaking in terms of “hurt” versus “injured”; “really bad” versus “grievous”; “wrong” versus “incorrectly”.

You must also be sensitive to the age of the phrase itself. Remember looking up words in the dictionary and seeing the word “archaic” pop up? The same applies to when you are communicating with someone. I am not only referring to age appropriate speech but “times appropriate” speech. Bytes are not always taken as a means of sustenance just as posting to a “wall” does not necessitate the use of glue or nails! Sadly, as time goes on words and phrases adopt new meanings and we must constantly be on guard that we use words and phrases in a manner in which the recipient will clearly understand our intended meaning.

There is also the fact that many words, terms and phrases that will actually drop from use altogether. As a lwayer, we used to be tought legal terms phrased in Latin. I learned early on that my clients didn’t know the difference between the phrases “ipse dixit” and “res ipsa locator,” so why was I still using them?

This is even more critical in this the digital age. When you actually speak with someone you hear tone, tenor and inflection in their speech. You know when they are happy, sad and agitated. You know clearly when you have angered someone. But how many times have you written an e-mail only to have to make a telephone call to explain yourself? Most communication between people these days takes place across the internet in written form. Sometimes, it does not even consist of complete words or statements LOL!

A great deal of care must also be taken when communicating with foreign born individuals or those who don’t speak the same language as you. Plain meaning has to go almost to a rudimentary level to ensure that the translation given or understanding taken is one that even a young person could understand. Similarly, people from one region of the United States may not use the same verbiage as from another area. A great example of this although perhaps a bit simplistic, is the use of the word “soda” for “pop” for “cola” and visa versa. The point being, plain meaning must be used to make certain that all bases are covered!

What we say is not always understood as what we meant to say. Care must be employed to make certain that the people who we mediate with, who we are communicating with, are truly fully engaged in that conversation. Ony then will they be able to completely participate on an equal basis in any negotiations taking place, and be able to exercise their independent judgement and decision making processes.

The plain meaning rule goes way beyond legislative interpretation. It goes to the heart of what we as mediators do: communicate and foster communication.


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