Many of us took the opportunity during the pandemic to study a new language using a language instruction app or digital program. When learning a new language, we begin with basic terms and vocabulary, often creating phrases to define an object when recall of the vocabulary word does not happen (e.g., “the thing that holds a letter” for the word “envelope”).
As law students, we were taught a “new” language when learning how to think and write like a lawyer. Attorneys are privileged to know legal terms, phrases, and vocabulary, becoming so fluent that we often forget that these terms and phrases are not common knowledge.
Mary L. Ferwerda,
Marquette 2011, is executive director of the Milwaukee Justice Center,
the civil legal aid self-help center in Milwaukee County. She is co-creator of the Parenting Conference Dispute Resolution Program in partnership with Milwaukee County Child Support Services.
For many clients and self-represented litigants, these terms and phrases truly are a new language in which they are not fluent. In communications with the court and other attorneys, speaking this language often is critical to successful legal outcomes.
Using Plain Language
When working with clients and self-represented litigants, lawyer-mediators should recognize that legal language can create barriers to understanding. Incorporating concepts of “plain language” and its suggested standards into dispute resolution documents, such as agreements to mediate and the resolution agreements, can improve parties’ understanding and compliance with the stated terms.
According to the Self-Represented Litigant Network (SRLN), the use of plain language in official documents has been a topic of discussion since the mid-1990s. In 2010, the Plain Language Act was passed, setting guidelines for drafting government-related documents.
Plain language advocates encourage the legal field to implement these concepts widely, from court forms to filing instructions and even in dispute resolution documents.
A few guidelines outlined in plainlanguage.gov, as applicable to dispute resolution, include the following mandates:
These are discussed below.
Write for Your Audience
When drafting agreements to mediate or resolution agreements, attorney-mediators should consider the audience for that document.
Do not follow a generic rule, such as “write for an eighth grade audience,” unless you are creating a document for middle school students. Similarly, if your audience is not other lawyers, you should not fill the agreement with legal terminology and phrasing.
For practical suggestions, review this list of simplified words and phrases from plainlanguage.gov, including the “dirty dozen” words that overcomplicate writing. While templates can be helpful to busy legal staff, adjusting template language to meet the needs of parties and for ease of understanding makes a document useful and not just another piece of paper in the file.
Similarly, attorney-mediators should limit legal jargon, such as “aforementioned,” “thereafter,” and “henceforth.” The use of these and similar terms certainly signal to the reader that this is a legal document, but they do not increase understanding or compliance with any component of an agreement. In fact, they can make an uncertain reader feel intimidated or ignorant, which is not a goal of any dispute resolution process.
Organize the Information
Next, the attorney-mediator should take into account the design and organizational style. Use headings, craft short paragraphs, and include plenty of white space to make a document easier to read and understand.
Whether the document is organized chronologically or topically depends on the nature of the dispute and outcome. In good legal writing fashion, the most important information should be near the top for ease of reference.
Use Simple Words and Phrases
In addition to using active voice and avoiding hidden verbs in the text, attorney-mediators should use “must” rather than “shall” to indicate a required action. The word “shall” has significant meaning in the law, but for those without the legal education and background, the word can be less precise than the alternative “must.” For further discussion on the declining use of “shall” in legal work, read this American Bar Association blog post by the editor-in-chief of Black’s Law Dictionary.
Finally, lawyer-mediators should resist the temptation to include more words than are necessary. Complex sentence structures with added phrases and clauses can lead to confusion and misunderstanding.
Be critical of your own writing, and choose concise phrasing with limited prepositions, modifiers (e.g., completely, totally, quite), and redundancies. Instead of writing “in order to,” simply write “to.” Instead of “at this point in time,” use “now.” Instead of “is able to,” use “can.”
Review the plainlanguage.gov website for more suggestions to make your writing more accessible to all readers.
Plain Language Improves Outcomes
Using “plain language” concepts in dispute resolution can improve clients’ and self-represented litigants’ experience with the legal system.
As lawyer-mediators, we understand the value of parties having influence, agency, and power in determining outcomes. When documents are easy to navigate and comprehend, there are less opportunities for confusion and misunderstanding, and parties are more likely to fully engage in the dispute resolution process.
This article was originally published on the State Bar of Wisconsin’s Dispute Resolution Blog. Visit the State Bar sections or the Dispute Resolution Section web pages to learn more about the benefits of section membership.