This article is the first in a series designed to explore “Values-Based Language”: the many language and communication tools that can be used by mediators, collaborative practitioners, and family law attorneys in more traditional practices seeking to make their settlement skills more family-appropriate.
By Fern Topas Salka, Family Lawyer and Mediator
Language has a significant impact on how we feel, the way we think, and even what we think about in that it reflects our values and affects them as well, in an interactive circular pattern.
In the days when I was a college student, lawyers were routinely referred to generically as “he,” and so it never even crossed my mind that I, a woman, could be a lawyer. For those of us who were educated and then steeped in a divorce process that grew out of a legal system designed for criminals, business transactions, and tortfeasors – and a process based on rights as opposed to responsibilities – we, too, have been limited by our language and the values it encompasses. We can barely imagine that our adversarial cases could be handled collaboratively and lead to opportunities, resolution and even healing.
The connection between language and values was clear to legislators in the ’60s when divorce rates began to significantly rise. They got the point that if we wanted families going through divorce to fare better, we had to have better language. Hence, in 1970, the California Family Law Code was totally re-vamped, and we changed the word “alimony” to “spousal support,” “divorce” to “dissolution,” and “Plaintiffs” and “Defendants” became “Petitioners” and “Respondents.”
These seemed to many at the time like changes without substance, semantic changes of which many people had not even been previously conscious. But they were, in fact, harbingers of and agents of a complete change in the societal attitude about the right of a person to leave an unhappy marriage.
Values-Based Language and the Language of Consensual Dispute Resolution
Similarly, the language of Consensual Dispute Resolution (CDR), which encompasses mediation and collaborative law, reflects and affects change in the way many people now want to settle their cases – especially family separation matters where they will have to have long-standing relationships with their former romantic partners. Even the name by which these relatively new methods of resolving disputes illustrates this point.
CDR began in earnest in 1981 with the publication of Roger Fisher’s and William Ury’s Getting to Yes: Negotiation Agreement Without Giving In (Boston: Houghton Mifflin, 1981). CDR was an outgrowth of the Harvard Negotiation Project, and until approximately the past five years, the industries that developed from these techniques were called “Alternative Dispute Resolution (ADR).”
The term “Alternative Dispute Resolution” demonstrates a somewhat hierarchical bias, indicating that the primary way to resolve disputes is through the adversarial system. Adopting the lead of progressive jurisdictions (such as Australia and British Columbia, Canada) where consensual dispute resolution is now seen as the first option (hence called “Primary Dispute Resolution”), the California State Bar Family Law Section ADR Sub-Committee – which I co-chaired at that time – changed its name to the State Bar Family Law Section Consensual Dispute Resolution (CDR) Sub-Committee, reflecting its nature without bias and also its elevated status.
The language of CDR has permeated the legal world and made its way into public awareness. “Mediation,” “win-win,” “reframing” and “active listening” are now familiar to many, even if the actual application of these buzzwords is not clear to them. This article expands the new language that can be used by mediators and collaborative practitioners in family separation conflict resolution efforts as well as by attorneys in more traditional practices who would like to enhance their settlement skills to be more family-appropriate.
Values-Based Language Supports Divorcing Couples and their Families
I call this new language “Values-Based Language” (VBL). This language assists divorcing “people” or, when appropriate, “parents” (the VBL way of referring to “parties” or the slightly less adversarial but rather clinical term “clients”) move on without adding more stress to an already stressful situation. Values-Based Language supports families. Values-Based Language does not negate the role of either parent. Values-Based Language emphasizes and affirms that divorce is primarily a relationship issue and secondarily a legal issue, and it recognizes that divorced parents have an on-going and never-ending co-parenting relationship.
To quote Sharon Ellison, the author of Taking the War Out of Our Words: The Art of Powerful Non-Defensive Communication (Bay Tree Publishing, 2002), “[These kinds of communication tools] move us toward conflict instead of resolution, [toward] judgment instead of learning, resistance instead of openness, anger instead of love.”
This article is the first in a series designed to explore the many language and communication tools that can be adapted to the field of family law CDR as well as to the elevated settlement of those family law cases still in the traditional adversarial system. The next two articles will provide a list of useful Values-Based Language phrases, but they are not meant to be a script. Rather, they are meant to illustrate the way we can alter our language to reflect the values we seek to promote.
Fern Topas Salka is a Certified Family Law Specialist and Fellow of the American Academy of Matrimonial Lawyers. The former Chair of the Family Law Section of the Los Angeles County Bar, she has taught and written extensively about mediation and other consensual dispute processes. Los Angeles Magazine has named Fern a SuperLawyer for the past 11 years. She is a founding member of the Los Angeles Collaborative Family Law Association, which was formed to advance the practice of collaborative family law. www.fernsalka.com
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