Living in the Age of Rhetoric – Challenges for mediators

The term “rhetoric” has changed its meaning over time. According to the Oxford English Dictionary it has its origins in Greek antiquity and was defined by Aristotle to mean: the faculty of observing in any given case the available means of persuasion” and since the mastery of art was necessary for victory in a case at law or for passage of proposals in the assembly or for fame as a speaker in civil ceremonies, he called it “a combination of the science of logic and of the ethical branch of politics.” Rhetoric typically provided heuristics for understanding, discovering, and developing arguments for particular situations, such as Aritstotle’s three persuasive audience appeals: logos, pathos and ethos. the five canons of rhetoric of phases of developing a persuasive speech were first codified in classical Rome: invention, arrangement, style, memory and delivery.

In modern usage, the word “rhetoric” has come to mean language designed to have a persuasive or impressive effect, but which is often regarded as lacking in sincerity or meaningful content. The Oxford English Dictionary uses the example: “All we hear from the opposition is meaningless rhetoric.” It is in this latter context that the the word is used in this post.

The problem of rhetoric in dispute resolution discourse was encapsulated in a recent story which appeared in the morning media of 19th July 2019, when it was reported that residents have been prevented from occupying a fourth Sydney apartment building because of safety concerns with respect to toxic substances on the land including heavy metals, hydrocarbons, asbestos and contaminated ground water. the problem, according to a City of Sydney spokesperson, is that the developer had not complied with the conditions of the development consent requiring it to remediate the site before commencing construction work. The Council understands that this is “…a most frustrating situation for all terrace and apartment owners.”

The developer’s website marketing material claims that the property comprises “…amongst the most desirable residences ever to grace (the suburb’s) leafy village streets” and that (the Company) enjoys “…a strong reputation in all facets of property development” established over the past 15 years describing this as its “flagship” project. To consumers who continue to live in rented premises, have their goods and furniture in storage and have extended their mortgages while they await completion of their new homes, this is no doubt all rhetoric which serves only to rub salt into the wound and inflame hostilities.

To exacerbate matters it appears that, in answer to complaints about the long delays in completing the project (now fifteen months overdue for completion), the developer had misrepresented that the cause of the delay was due to “unforeseen planning issues” without disclosing the truth that it had failed to remediate the contaminated soil prior to commencing consruction as the Council required.

This scenario exemplifies what appears to be a burgeoning problem in the exchange between those who have been aggrieved and those who aggrieve them. It is the abandonment of good will and accountability in favour of baseless, meaningless weasel words euphemistically described in contract litigation as “puffery.” It is a feature of this manner of communication that, whilst superficially it seems to offer everything, in substance it promises nothing and anything that it does promise can never be measured so that no obligation is actually created.

In the building development story recited above, the developer issued a statement saying that it was “…working with Council to ensure that buyers could begin enjoying their new homes as soon as possible…” Farm from providing any measure of comfort to consumers, this language serves only to generate added hostility and further inflame the conflict. It is, as Don Watson said in his book Death Sentence: The Decay of Public Language (Random House 2003) “the superb indifference that the powerful have for the weak.”

In mediation discourse the language of rhetoric is resistant, non-commital and dangerous and puts the mediator on notice of an absence of good will or a poor approach to integrity based negotiations or both of these factors.

The language of rhetoric is sometimes expressed in terms of vague generalities from disputants who make offers that are contingent on external events over which they have no control. “Perhaps we could do something like that but it would depend on what our insurers say…” or “We acknowledge that there has been a breakdown in the system and we will be investigating it fully.” The message that is conveyed in all these situations is that there is nothing specific which can be done and the respondents to the claim just need a little more time to think how to escape the dilemma without being held accountable.

In my PhD research there was a hint of complaint, mainly from lawyers, who spoke of receiving instructions to formalise agreements made at mediation which were incapable of enforcement because they lacked precision or were contingent and featured vague promises that were unclear as to their content or as to the manner and timing of their implementation. In some cases the mediator had simply noted the general nature of the “agreement” without sufficiently reality checking the strength of the arrangements with the parties to ensure that they were satisfied that they had an enforceable agreement. In one case a research respondent reported that a mediator had just torn off the printed strip containing the electronic whiteboard notes and provided a copy to each of the parties as evidence of the agreement. Of course, this is not to suggest that mediation agreements must always be enforceable. That, however, is a decision which should be made positively and advisedly.

It is unclear at the time of writing this post whether there hs been research into this area of disputant behaviour. However, it seems that, at least anecdotally, there is an increasing prevalence of the use of rhetoric in response to legitimate consumer complaints and that DR practitioners and theorists could benefit by considering this as a topic for further research.

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