Mediation On-Line A Newsletter from ADR Resources http://adrr.com/adr9/044.htm Volume 4, No. 9. (July 2001) From: Ethesis@aol.com (Ethesis) To: SMarsh@adrr.com Subscribe

Greetings:

I am pleased to be able to announce a new case study on my web site.  http://adrr.com/adr4/casestudy.htm is the url and Margaret Colleen Davenport is the author. I have also been privileged to host a copy of an article by Barry Simon, at http://adrr.com/truth2.htm -- Perspectives of a Non-Lawyer Mediator.  Also, on-line at http://adrr.com/adr9/044.htm at the bottom of the page I have (with permission) some comments on linguistics and the law.

Also, this is the first newsletter I will have sent out using the new service I have signed up for at topico.com.  Listbot.com has announced that it will be out of business by the end of August and so I am migrating.  I apologize for any confusion or problems that I may have caused anyone.

The Recommended Book of the Month:

I recommended Dan Dana's book for two months on my site's home page.  I'm still pleased with that decision and do not feel that I was giving it too much emphasis.  This month I recommend Spin Selling (Situation, Problem, Implication, Need -- S. P. I. N.) by Neil Rackham.  Most professionals, especially mediators, are selling an intangible service.  The same techniques that sell toasters are harmful when you try to sell your services or anything else worth more than about fifty dollars.  In addition to the sales advice and orientation, Rackham (who is a consultant) uses terms and approaches to that are congruent with those that a dispute resolution professional uses to help others solve their problems and approaches -- selling things from the perspective of understanding and meeting the needs of others.

I am also recommending Managing Public Disputes by Susan L. Carpenter and W. J. D. Kennedy.  I spent a lot of time looking for a better book before I finally just sat down and began to read this one.  I was hoping for something newer that would include that intangible something ... but this book is comprehensive, solid and complete (who needs je ne sais quoi when you have everything?).  I only wish I had begun to read the book sooner.  I've waited to recommend it in order to leave Dan Dana's book on my front page longer, but it is a book that every professional ought to read who is resolving disputes beyond court annexed cases.  

I admit I was distressed to discover that the most common method of environmental and public policy dispute resolution consists of shuttle negotiation (pure process mediation).  Managing Public Disputes gives you much, much more.

Interesting new Mediation & ADR web sites

• Daniel M. Duty Associates at http://www.danielduty.com/ has his own mediation site.
• Australia continues to produce more mediation material than all of the United States put together (between Australia and South America it is amazing that sites in the United States get any hits at all).  http://www.mediate.com.au/ is a fine example of what is going on "down under."
• http://aom.pace.edu/cmd/ is the redesigned Academy of Management Conflict Management Division site.  They are looking for active feedback and suggestions.
• http://bond.edu.au/ is a law school related site, with a great newsletter.  The editor's e-mail is john_wade@bond.edu.au.
• http://www.mediation-agency.com/mediation-191.htm is a good place to visit in case you are considering the combination of picking up training and some sunshine.  FHanna@compuserve.com (Frank Hanna) is the contact person.
• Of course New Zealand is not behind Australia in mediation web sites or mediators.  A good one to visit is http://www.neutral.co.nz
• http://lawpreview.com/Atticus_archive_5_27_01.html contains a friend's thoughts about his father.  Peace and reconciliation can never come too soon, both for groups and for each of us.
• http://www.convenor.com/ is an excellent site to reflect a direct and clear focus.  A web site like this is much more valuable than one that says "you have a possible need to pay someone?  consider us!"  Of the few web sites that I have seen that were of use to the mediator, all were focused, none were general.
• http://www.convenor.com/madison/t-t-p.htm is the site for the Theory-To-Practice project and well worth a visit.
• I've downloaded free software and nature scenery from webshots.com and I have to recommend the site to anyone who could use a little more beauty in their life.  For free.  Worth the time it takes, even over a dial up connection.
• http://chronicle.com/jobs/2001/07/2001070601c.htm is an interesting article for anyone thinking about teaching at the college level or beyond and http://chronicle.com/jobs/2001/07/2001070603c.htm is a great article about the career path of "being about" mediation (or any other associational endeavor).
• http://www5.law.com/lawcom/displayid.cfm?statename=TX&docnum=73687&table=news&flag=full is an article about a case I just won in the Texas Supreme Court.  Mark and I took it pro bono and were very pleased to win it.

Educational Programs / News and Book Reviews/Books/Periodicals

The Theory-To-Practice project has published a monograph, Monsters in the Waters, Fear and Suspicion Divide the Field of Conflict Resolution.  The monograph is also titled, The Conflict Resolution Practitioner.  The one title is the title of the issue, the other title is the title of the publication, which they hope will continue.  The journal is on-line at http://www.convenor.com/madison/crpcover.htm.

I thought I would comment on some of the points made in The Conflict Resolution Practitioner in light of my own observations and thoughts.

First, scholarship in dispute resolution is moving ahead in several ways -- all pretty much unrelated.

• As a part of law schools, generally one step above the legal writing programs (you know, the thing lawyers do the most of is write, all of the exams and papers in law schools are written, and what makes for winning law is writing.  One would think that the most important thing any law school would teach would be writing and that they would use a blend of English writing professors and the most talented of written advocates they could find.  One would be wrong).  The AALS does have an ADR listserve at http://www.aals.org/sections/ar.html
• As a part of business schools, becoming a strong part of the mainstream in many schools.  On the other hand, some business schools look so far down on the entire area that they don't even have negotiation classes.  Go figure and visit http://aom.pace.edu/cmd/.  The AALS needs a similar web page, they have a section (see the link above).
• As a part of social sciences programs, often very respected (Pugwash, a noble prize-winning foundation, is basically a social sciences dispute resolution project).
• As an overgrown part of other programs (especially continuing education) and with the amount of respect kuzdu gets. (http://www.cptr.ua.edu/kudzu/).
• Almost always in isolation -- and without significant contact with practitioners (in fact, I've got an essay I'm working on "you call that mediation?" about process mediation and court-annexed ADR, etc.).

Second

• Basic research that is old, very old, is still not a part of most programs.  For example, the basic economics studies on loss aversion and similar asymmetric results, those studies are a generation old.  From The Conflict Resolution Practitioner it is rather obvious that most people have never encountered those theories in their training.  (Basically, if someone gives you a hundred dollars, and then offers you a chance to take a 50% chance on turning it into $250.00 you will probably turn them down.  If you suddenly discover that you owe someone $100.00 and you get a 50% chance of turning it into owing them nothing, but 50% chance of changing it into a $250.00 debt, you'll take the risk. Similarly, if you have two theatre tickets in your pocket and they get stolen, you will probably go home rather than use a credit card to buy replacement tickets.  If you have $50.00 to buy two tickets with and the money gets stolen, you will probably use your credit card to buy replacement tickets.)  I should note that the references to these theories in the articles in The Conflict Resolution Practitioner did not cite to the base line research, but rather referred to a more recent book.
• Most of the scholarly work I've seen published is useless.  Most of what is useful is disdained by scholars who are actually disinclined to communicate with practitioners.  By the way, most of the scholars I've met really were not that bright.  Quasischolars (people who are teaching in a non-research oriented program) tend to be brighter, but they also tend to be successful practitioners.
• Most of the cross-disciplinary scholars are terribly narrow and miss things that are really old (as in more than three hundred years old) are still completely unknown to them because they have not crossed discipline borders.  I'm dismayed by the lack of understanding of a nominalist/idealist clash (e.g. Aristotelian thought and platonic idealism), the bad logic, and complete ignorance of huge portions of the historic record by most scholars.
• Many scholars lack significant experience and do not understand what is happening in the world of practice -- and lack perspective and sufficient understanding to realize why what is happening is happening.

Third

• There is no respect of practitioners by scholars and no practitioner trusts a scholar more than once (before the trust is betrayed -- btw, the above is a paraphrase of an idea, not a quote).  I hadn't realized the problem was as bad as it apparently is before I read The Conflict Resolution Practitioner.  
• Most practioners don't have any use for abstract knowledge (really?  I guess my circle is not normal, but I have to say that many of the practioners I know enjoy abstract knowledge).  That is really too bad.
• Some very, very basic facts are apparently not well known (the bullet point style comments in the various side bars cover points that are very, very basic, and apparently not well known).

Obviously this is my take on the situation, not the way the information is presented in The Conflict Resolution Practitioner nor necessarily the conclusions that they reach.  Visit their website and read their material yourself.

Employment

Associate General Counsel, Alternative Dispute Resolution Law Office, Office of General Counsel, ES-905, Salary: The salary range for this position is ES-1 to ES-5, $120,261 - $133,700 per year.  This is the best opening, bar none, that I have seen for a dispute resolution professional.

Current Issues

I had a long talk with two different individuals, both working with government entities.  One is attempting to establish a certification program in connection with state courts in order to (a) legitimatize mediation in the state at issue, (b) assure quality control, (c) assure equal access to referral panels.  I wish him luck.  The other is attempting to evaluate mediation in the United States vis a vis their province's program and to understand why so many programs seem to be completely dominated by process mediators.  I am working on an essay that expresses my thoughts and reflections.

Submissions to adrr.com

As always, I am interested in any submissions or articles anyone would like to have posted on the web -- and I am glad to be able to point them out in this newsletter.  I prefer to post material as you have written it, with no editorial changes by myself.  I should also note that I am changing my service provider, so that smarsh@adrr.com is the best e-mail address to use to reach me.

With my best regards, I remain,

Sincerely yours,

Stephen Marsh
http://adrr.com/adr9/044.htm
Additional material is included in the on-line version.
If you are curious where the term/name Ethesis comes
from, visit http://adrr.com/living/ethesis.htm

Back issues at http://adrr.com/adr9/mediation.htm
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If for some reason you wish to be removed from my periodical mailings please let me know. If I'm sending anyone extra copies or sending it to anyone who shouldn't be getting it, please let me know. This e-mail mailing list is supposed to be limited only people who would be interested and who have subscribed.  Thanks for your patience and help.

Post Script (the "extra" material for the on-line version).

Feel free to repost this information. I have made some minor changes (e.g., eliminated the word "these syllabi" from item E in Dr. Levi's contribution, and used bold type with the numbers that indicate individual contributions (1,2,3, and 4). If you think editing is needed to get rid of some repetitious statements, feel free to do so.

Susana Sotillo

=====================

Date: Tue, 26 Jun 2001 13:34:04 -0400

From: Susana Sotillo IMAP <sotillos@mail.montclair.edu>

Subject: Resources for Language and the Law

I posted a query to the Linguist List back in May asking for scholarlyreferences and suggestions for an undergraduate course in Language & the Law.

I would like to thank those who responded for their most thoughtful suggestions and generosity in sharing their bibliographies and course descriptions with me. I am overwhelmed. Here is a summary that other Linguist List members may find extremely helpful:

Subject: Language and the Law

1. From Gerald McMenamin <geraldm@csufresno.edu>

Thank you very much for a very impressive bibliography. I am only reproducing parts of it because of space limitations. Those who want the complete bibliography, please e-mail Dr. McMenamim at <geraldm@csufresno.edu>.

Web Resources:

Forensic Linguistics at the University of Birmingham: http://www.clg.bham.ac.uk/forensic/index.html/

Forensic Linguistics: The International Journal of Speech, Language and the Law: http://www.bham.ac.uk/forensiclinguistics/

International Association of Applied Linguistics http://www.aila.ac/

International Association of Forensic Linguistics http://www.english.bham.ac.uk/forensic/IAFL/

International Association of Forensic Linguists: Bibliography http://www.iafl.org/International Association for Forensic Phonetics http://www.iafp.net/

International Journal for the Semiotics of Law / Revue international de sémiotique juridique http://www.wkap.nl/journalhome/0952-8059/

Language in the Judicial Process, electronic newsletter of language and law (Bethany Dumas) http://www.outreach.utk.edu/ljp/

Linguist List Search Engine for Linguistics and Languages http://linguistlist.org/7tones.html/

Linguist List Archive of Lists on Linguistics and Languages http://linguistlist.org/multilist/searchall.html/

Plain Language - USA http://www.plainlanguage.gov/

Plain Language - UK http://www.plainenglish.co.uk/

P. M. Tiersma Website http://www.tiersma.com/

FORENSIC LINGUISTICS

Bryant, M. English in the Law Courts: The Part that Articles, Prepositions and Conjunctions Play in Legal Decisions, Frederick Ungar, New York, 1930 and 1962.

Conley, J. M. and O'Barr, W. M. Just Words: Law, Language, and Power, University of Chicago Press, Chicago, 1998.

Crystal, D. The Cambridge Encyclopedia of the English Language, Cambridge University Press, Cambridge, 1995.

Crystal, D. The Cambridge Encyclopedia of Language, Cambridge University Press, Cambridge, 1987.

Danet, B. "Language in the legal process," Law & Society Review, 14:3:445-564, 1980.

Eades, D. "Forensic linguistics in Australia: an overview," Forensic Linguistics, 1:2:113-132, 1994.

Eades, D. Language in Evidence: Issues Confronting Aboriginal and Multicultural Australia, University of New South Wales Press, Sydney, 1995.

Gibbons, J., Ed.. Language and the Law, Longman, New York, 1994.

Gibbons, J. "Applied linguistics in court," Applied Linguistics, 11:3:229-237, 1990.

Kniffka, H. Texte zu Theorie und Praxis forensischer Linguistik, Max Niemeyer Verlag, Tübingen, 1990.

Kniffka, H., S. Blackwell, and Coulthard, M., Eds. Recent Developments in Forensic Linguistics, Peter Lang, Frankfurt, 1996.

Lakoff, R. T. Talking Power: The Politics of Language in Our Lives, Basic Books, New York, 1990.

Levi, J. N. Language and Law: a Bibliographic Guide to Social Science Research in the USA, University of Chicago Press, Chicago, and American Bar Association, Washington, D.C., Teaching Resource Bulletin No. 4, 1994a.

Levi, J. N. "Language as evidence: The linguist as expert witness in North American courts," Forensic Linguistics, 1:1:1-26, 1994b.

Levi, J. N. and Graffam Walker, A., Eds. Language in the Judicial Process, Plenum Press, New York, 1990.

Levi, J. N. Linguistics, Language, and Law: A Topical Bibliography, Indiana University Linguistics Club, Bloomington, 1982.

Melinkoff, D. The Language of the Law, Little Brown, Boston, 1963.

Murphy, H. F. "Linguistics and law: An overview of forensic linguistics," Journal of Law, Intellectual Property, and Technology, 1:,

1998.

O'Barr, W. Linguistic Evidence, Language, Power and Strategy in the Courtroom, Academic Press, New York, 1982.

Rieber, R. W. and Stewart, W. A., Eds. The Language Scientist as Expert in the Legal Setting, Annals of the New York Academy of Science, v. 606, New York, 1990.

Shuy, R. W. "Language and the law," Annual Review of Applied Linguistics, 7:50-63, 1986.

Shuy, R. W. Language Crimes: The Use and Abuse of Language Evidence in the Courtroom, Blackwell, Oxford, 1993.

Shuy, R. W. "Linguistics in other professions," Annual Review of Anthropology, 13:419-445, 1984.

Shuy, R. W. The Language of Confessions, Interrogation and Deception, Sage Publications, Los Angeles, 1998.

Tiersma, P. M. "Linguistic issues in law," Language 69:1:113-135, 1993.

Wetter, J. G. The Styles of Appellate Judicial Opinions, A. W. Sythoff, Leyden, 1960. 2. From Judith Levi <j-levi@northwestern.edu>

Judith Levi, a professor at Northwestern, was extremely generous. She shared the following with me:

A. Language and Law: A Bibliographic Guide to Social Science Research in the USA (ABA, 1994). "There are 1350 entries, arranged according to topic. That will give you enough for ten courses' worth of materials."

B. "There *is* no textbook on the subject that I know of... However, you might want to consider one or more of these quite different options as texts:

Language in the Judicial Process (1990), ed. by myself and Anne Graffam Walker (Plenum) -- 1st ever collection of articles on language and law focusing on social science research.

Legal Language (1999) by Peter Tiersma (who has a Ph.D. in linguistics but is a law prof) (U Chicago Press).

Mellinkoff, David (1963) "The Language of the Law" (a classic by a law professor who also wrote "Legal Writing: Sense and Nonsense")

There are other books available (i.e., beyond articles) but your choice would depend on what you want to cover (e.g., forensic linguistics, or language minorities, legal drafting, or legal culture, etc.) You can find numerous suggestions in the Introduction section of my bibliography (q.v.)"

C. Web resources. Judith suggested sending a query to the Forensic Linguistics list: http://www-clg.bham.ac.uk/forensic/index.html : The Forensic Linguistics home page of the U of Birmingham (UK) -- a superb resource. http://www.outreach.utk.edu/ljp/links/links.html - a US page called "Language in the Judicial Process" (after our book).

D. For Cyberlaw references: Bethany Dumas, the linguist/JD/consultant/English prof who maintains the LJP site. (<dumasb@utk.edu>)

E. Dr. Levi attached her Syllabi as Word Files. These syllabi present a broad survey of topics. Those wishing to obtain copies, please e-mail Dr. Levi at j-levi@northwestern.edu

3. From Nancy Frishberg <nancyf@fishbird.com> and Georgina Heydon <Georgina.Heydon@arts.monash.edu.au>

FORENSIC-LINGUISTICS@JISCMAIL.AC.UK

Forensic Linguistics Home Page: http://www-clg.bham.ac.uk/forensic

Contact Sue Blackwell at the International Association of Forensic Linguistics (IAFL) at the University of Birmingham,

<S.A.Blackwell@BHAM.AC.UK>.

4. From France <mugler_f@usp.ac.fj>

"From a sociolinguistic standpoint, two interesting aspects of this are 1. research into cross-cultural 'ways of speaking' and possible miscommunication; and 2. the asymetrical talk that typically takes place in institutional settings where there is a clear power differential between speakers. Put the two together and,bang!, disaster."

An example of applied (or 'forensic') linguistics in law - that takes into account both of the above - is the work of Diana Eades with Aboriginal Australians in law courts.

Once again, thank you so much for your help!

Susana M. Sotillo (Sotillos@mail.montclair.edu)

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Date: Tue, 26 Jun 2001 15:54:48 -0400

From: Susana Sotillo IMAP <sotillos@mail.montclair.edu>

Subject: Re: Fwd: Linguistics and the Law

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