This post presents an overview of a paper by myself and Rachael Field which I presented at the recent ADR Research Network Roundtable, entitled ‘Learning to Play the Language Game: Confronting the Hidden Challenges of Family Mediation’.
Mediation is becoming more and more prominent as a mode of dispute resolution in family law matters. There are many benefits that can be claimed for mediation as a mode of resolving family disputes, including its informality, flexibility and less confrontational nature. These benefits make mediation a potentially suitable method for resolving many types of post-separation issues. However, even while offering parties the opportunity of consensual, non-adversarial dispute resolution, mediation can also present them with significant challenges.
The greatest of these challenges perhaps arise where parties in family mediation must negotiate on their own behalf, since lawyers are either not present or are excluded from the process. Mediation in the absence of legal representation requires parties to effectively articulate their own stories, interests, issues and concerns, as well as potentially those of their children. Participants in family mediation are expected to be reasonable, engaged and effective negotiators at a time in their lives – post-separation – which is, in many cases, one of the most chaotic, difficult and emotional.
There are, therefore, obvious challenges facing unrepresented parties in family mediation, particularly those with little prior knowledge of the process. It might be thought that these problems are counteracted by the relatively informal character of the mediation environment. However, the family mediation environment, despite its relative informality, is structured by underlying conventions and expectations that are often opaque to inexperienced participants.
Ludwig Wittgenstein’s notion of a language game offers a way of thinking about the underlying conventions in different forms of social discourse. Wittgenstein notes that language fundamentally influences – and, indeed, constructs – the ways in which people interact. Language is linked to social behaviour and to the social dynamic. Effective communication, then, becomes a matter of understanding the applicable social context and knowing how to play the relevant language game.
Mediation researchers and practitioners need to pay attention to the language game of mediation in order to help parties navigate the process. Party preparation can play an important role in enabling inexperienced participants to engage effectively in family mediation and protecting vulnerable parties from being disadvantaged by hidden expectations. Helping parties understand the language game of family mediation represents a critical new focus of family law practice.