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Language and Access to Inclusive Justice: The Contribution of Tribunals

Justice must be fair and impartial, but also must be seen to be fair and impartial – and inclusive tribunal processes are a big contribution to the sense of fairness that all participants in a tribunal proceeding are entitled to receive.

Language – and people’s perception of that language – is an important gateway to fairness (and perceptions of fairness). Karen Yin has a website that focuses on the language of equity and has also recently published a book that serves as a useful guide to the use of what she terms “conscious language”: The Conscious Style Guide: A Flexible Approach to Language that includes, respects, and empowers.

Conscious language is language that promotes equity. The words conscious and equity are doing a lot of work. Conscious means “aware, mindful, and intentional.” Equity, at its essence, means “fairness.” So conscious language connects awareness to fairness, philosophy to practice.

Ultimately, it is about freedom. When words, phrases, and stories fail to affirm our humanity and individuality, we are not free. To harness the power of words for equity, we need to activate our curiosity and considerateness. Conscious language, therefore, is rooted in critical thinking and compassion, used skillfully in a specific context.

Although “conscious language” overlaps with political correctness, it is a more holistic approach to language, moving beyond nouns and pronouns. Yin suggests that we can use conscious language when we want to:

  • be clear
  • be fair
  • be accurate
  • be specific
  • be descriptive
  • tell our own stories
  • tell other people’s stories
  • avoid causing distress
  • express compassion
  • shift perspectives
  • change the status quo
  • include
  • respect
  • empower

In other words, conscious language can be used when we want to be more aware, mindful, and intentional with communication. Yin asks, “When do you want to lean into thoughtfulness? That’s when you can use conscious language”. Language that is “conscious” has these five components:

  • skillful selection of content,
  • awareness of context,
  • consideration of consequence,
  • preservation of complexity,
  • and emphasis on compassion.

Yin’s book and website contain good resources for learning about appropriate (and conscious) language use, including links to style guides from both the United States and the United Kingdom. For a start on resources for inclusive writing, the Canadian government has prepared guidelines for inclusive writing, including resources for further learning.

Improving your own communication is one thing, but how can the approach taken by organizations, in this case tribunals, be changed? Yin has some good pointers in her book, including identifying those with influence in the organization and potential allies. It is, however, in the mechanics of persuasion that she has wise words for those of us keen on changing minds on language usage:

…Demanding compliance, making people feel bad, and instilling fear does not change minds. In fact, proselytizing or pressuring people may turn them off to ideas they would otherwise support. We need to give people space to process, which will help them be open to change.

Instead, we should appeal to people’s and organizational interests by asking ourselves the following questions:

  • What do they care about?
  • What matters most to them?
  • What’s in it for them?

She gives some examples of appealing to personal or organizational interests, and I have adapted some of those for the tribunal context:

  • When we use accurate and precise terminology, we avoid making assumptions and reduce the risk of misunderstandings.
  • By respecting people’s names, personal pronouns, and identity labels, we can build trust, loyalty, and rapport with them.
  • Policy compliance. By using appropriate terminology, we can meet our policy requirements for diversity and respect in the workplace.
  • Benchmarking and best practices. By using bias-free terminology, we will be benchmarking against [fill in the blank] tribunal and equalling their standard approach.
  • Legal requirements. By designing accessible and respectful communications we can meet our requirements under human rights statutes.

In addition to addressing interests, it is almost as important to consider people’s “blocks” by asking ourselves the following questions:

  • What keeps them from adopting this terminology?
  • What about their current terminology appeals to them?
  • What do they need to consider for this change in direction?

People do tend to follow the path of least resistance, so making change easy always helps. For example, you could:

  • Create a style sheet for easy reference
  • Provide links to online resources for language style
  • Designate a resource person who can provide non-judgmental advice on proper language use

Implementing conscious language in the tribunal setting is about inclusion and fairness, not about changing people’s beliefs or world views. Yin correctly notes that change in language use is less likely if the discussion devolves into an argument about intention or definition, which will likely be frustrating and fruitless:

To minimize harm, we need to orient ourselves to what language does, not what we hope it would do. Disagreement over definition points to incommensurability—a failure to calibrate on the ground floor. When minds are unable to meet because, for example, one person believes that woman is a biological concept and another insists that woman is a social concept, then conversations wilt before they can bloom.

She recommends that instead we should focus on the impact of language. How does our language usage affect those people who appear before tribunals – as parties, participants, or observers? How might our language affect people?

In the tribunal context, there are two primary motivators for conscious language: the ethos of access to justice, and the law against bias or reasonable apprehension of bias.

I like to think that all of the members of the tribunal community support the concept of inclusion in our processes, since inclusion is at the core of access to justice. Inclusion means a sense of belonging. In the hearing room – which is generally not a comfortable environment for anyone – it might be better described in the negative: not feeling out of place.

That is, or should be, the culture of tribunals. But there is also the law against bias. Actual bias in language in tribunal proceedings (from tribunal members) is rare. What is a more likely challenge is a reasonable apprehension of bias on the part of a decision maker. The test for reasonable apprehension of bias is well known – whether “… an informed person, viewing the matter realistically and practically — and having thought the matter through … [would conclude] that it is more likely than not that [the decision maker], whether consciously or unconsciously, would not decide fairly”: Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25 at para. 20.

With evolving norms about language use, it is not difficult to imagine that what an “informed” person thought a few years ago might be different than what they think today or will think tomorrow.

Words do matter – and tribunals need to pay attention to the use of language in all of their communication with the parties and the public, especially in the hearing room. Adopting a conscious approach to language can go a long way to fostering an inclusive hearing.

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