“Now, it is clear that the decline of a language must ultimately have political and economic causes: it is not due simply to the bad influence of this or that individual writer. But an effect can become a cause, reinforcing the original cause and producing the same effect in an intensified form, and so on indefinitely. … [The English language] becomes ugly and inaccurate because our thoughts are foolish, but the slovenliness of our language makes it easier for us to have foolish thoughts. The point is that the process is reversible. …”
George Orwell, “Politics and the English Language”
“The words we use shape our mindsets, which in turn affect how we think and behave.”
Family Solutions Group, “Language Matters”
How we frame conflict can influence how we approach its resolution. The world of litigation is full of angry, combative words that reinforce the perception of conflict resolution as a battle. Of course, some of this is inevitable as much litigation leads to “winners” and “losers”. However, in some areas of conflict it is more appropriate if resolution leads to cooperation or at least some maintenance of an ongoing relationship. The obvious area of law for ongoing cooperation is family law but other areas of law could benefit from this as well – labour relations, some human rights disputes, and environmental law, to name a few.
There have been significant recent legal reforms in the United Kingdom in family law. A multidisciplinary group (the Family Solutions Group, or FSG) was set up “to give fresh and focused attention to improving the experiences of, and opportunities for, separating families away from the Family Court.” Recently, the FSG issued a report on language in the family law context, entitled “Language Matters: a review of language for separating families”. The FSG stated that “we need language which is collaborative rather than combative, which is constructive rather than destructive, which points families forwards to positive futures rather than points backwards to damaging recriminations”.
Helen Adam, Chair of the FSG recently said:
It’s shocking that harmful terms like ‘custody’ are still commonplace in our society and the media, despite every effort to remove them. The ‘fighting talk’ so often used in the context of family separation sets parents against each other, escalating family problems and putting children at risk. A ‘custody battle’ suggests a tug of war between parents for the control of their child, with parents pulling against each other. Not only is this 30 years out of date [when the word “custody” was removed from the statute], but it’s harmful to children, unhelpful for parents and ultimately damaging to society.
In these days of increasing awareness of the impact of language upon minority groups, it is extraordinary that there is such a blind spot over the impact of language on families who separate. The simple truth is that fuelling aggression and battles between parents increases the risk of harm to their children. Our language should reflect a problem-solving approach rather than stoke the fire of a battle.
The FSG report sets out 5 core principles for language change, which are easily adaptable to areas of law other than family law:
- Plain English – avoid legal jargon and use words which can be easily understood
- Personal – use family names rather than legal labels
- Proportionate – use language which is proportionate to the issues being considered
- Problem-Solving – use constructive problem-solving language rather than battle language
- Positive Futures – the emphasis is not on past recriminations but on building positive futures
The report notes that changes in language will not happen by good will alone – “There are too many vested interests for keeping the language legal, impersonal and adversarial”. It suggests that change will only come through changes to the rules and issuing of practice directions (the specific recommendations on rule changes are not relevant to a Canadian audience).
The report also notes that changing language requires “robust management” by adjudicators to have any effect. The report suggests that this may require lawyers being publicly criticized by judges for using unnecessarily inflammatory or destructive language. The report gives a recent example of a decision where the judge referred to “nihilistic litigation”:
Each party thinks the other is, to use their own words, ‘out to destroy’ them. These proceedings have been intensely acrimonious. They, and their lawyers, have adopted a bitterly fought adversarial approach. I asked myself on a number of occasions whether the aggressive approach adopted by each side has achieved anything; it seems to me that it has led to vast costs and reduced scope for settlement. The toll on each party is incalculable (W was visibly distressed during the hearing) and, from what I have heard, the impact on the children has been highly detrimental.
The only beneficiaries of this nihilistic litigation have been the specialist and high-quality lawyers. The main losers are probably the children who, quite apart from the emotional pain of seeing their parents involved in such bitter proceedings, will be deprived of monies which I am sure their parents would otherwise have wanted them to benefit from in due course.
I agree with robust management of a hearing, especially when emotions are high. It can be appropriate to admonish a lawyer behaving badly during a hearing, although in some cases a private discussion with both counsel can do more to deescalate inflammatory language. In the situation of consistent bad behaviour by counsel in multiple hearings, it may be appropriate for the tribunal chair to speak to the counsel’s employer or client. I do not, however, agree with criticism of counsel in a decision. Decisions are public documents that can follow a lawyer around for many years. Decisions also don’t allow for responses or explanations by the counsel who is being criticized. Criticism of counsel in a decision can come across as not constructive and can border on shaming – which is never appropriate in a decision.
The report also notes that the language used to describe lawyers often gets in the way of effective resolution of conflict. Although there are promising signs of a growing public recognition that a good lawyer is one with a problem-solving approach, some of the misperceptions of the good lawyer as a “table thumper” persist. It certainly makes for better drama on the television screen. The idea of a lawyer “in your corner” is reassuring to many, but it also reinforces the idea of litigation as a boxing match.
Language change also requires each of us to examine language we use without thinking. For example, “dispute” and “dispute resolution” are normal parts of vocabulary for those in the legal profession. The authors of the report note that for those outside the law, these are terms that are not widely used. They suggest that using “dispute” escalates a family issue into one that is more serious, placing it in a legal context. Disagreements are not necessarily disputes, as one of the people consulted for the report noted:
People don’t start by finding themselves in dispute. Disputes emanate from unresolved problems. The systemic change I want to see is the identification of problems as requiring help before they turn into disputes. Isn’t a dispute largely an unsolved problem? Let’s start by helping people solve their problems before they become disputes.
Another example of reflexive language that those in legal circles use is “applicant” and “respondent”. The U.K. Magistrates Association commented to the report’s authors that these terms were exclusionary terms which imply an active and a passive participant in the proceedings “which can be emotive for parents”. The association suggested that although it is necessary at the beginning of a proceeding to identify who made the application, as the case progresses different names other than applicant and respondent should be used (after consulting with the parents).
This report reminds us that we should always be ready to question the words we use in conflict resolution and see if they help or hinder the effective and efficient resolution of the matter before us. It is also an important reminder that others may not see the words routinely used in litigation the same way that legal professionals do, making legal processes more opaque than they need to be. As Orwell reminds us, language use is always reversible, it just requires effort and focus.