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STUDIES IN LOGIC, GRAMMAR
AND RHETORIC 53 (66) 2018
DOI: 10.2478/slgr-2018-0003
Barbora Chovancov´a
Masaryk University, Czech Republic
PRACTICING THE SKILL OF MEDIATION IN ENGLISH
FOR LEGAL PURPOSES
Abstract. This article deals with mediation in language teaching, focusing on
how the practice of mediation – as a specific language skill – can be incorpo-
rated in the syllabus. The chapter defines the skill of mediation as an emerging
concept in language education, and discusses its potential for effective teaching
of English for Specific Purposes in general and English for Legal Purposes in
particular. The first part of the text seeks to answer several questions, aiming
to determine whether mediation is relevant in the context of legal practice and
whether it has a place in an English for Law syllabus. The second part addresses
a more practical concern of how the skill of mediation can be practiced by stu-
dents. The article makes a case for assigning mediation a much more central
place in the classroom, giving a number of specific examples of how this soft
skill can be developed in the teaching of ESP and ELP.
Keywords: legal English, ESP, ELP, mediation, communicative skills, CEFR.
1. Introduction
The field of English for Specific Purposes (ESP) has had a long tra-
dition of paying a close attention to the needs of language students. First
established as a discipline in the 1980s (Hutchinson and Waters 1987), is
was further developed by numerous scholars (e.g. Dudley-Evans 1998; Hard-
ing 2007) who have emphasized the learner-centred approach, typically bas-
ing their frameworks on careful needs analysis (Basturkmen 2006, 2013).
The field of legal ESP, also known as English for Legal Purposes (ELP),
has also received significant input from genre analysis (Swales 1990; Bha-
tia 2004). The concentration on “specialized discourse” (Gotti 2003) has
allowed ELP scholars to benefit from many findings on the genre charac-
teristics of legal texts and the peculiarities of typically written legal texts
and various legal discourses (Bhatia 1987; Bhatia et al. 2008; Gotti and
Williams 2010). Some of this research has been turned into practical advice
on how to design teaching materials (see, for instance, Bhatia 2002).
ISBN 978-83-7431-548-7 ISSN 0860-150X 49
Barbora Chovancov´a
Traditionally, some of the practical considerations of ELP have con-
centrated on language skills that have to do with legal stylistics (e.g. the
drafting of contracts and legislative texts), language reception (e.g. extrac-
tion of information from texts, particularly in view of the specific genre
characteristics of legal texts in view of their syntactic complexity and den-
sity of terminology, cf. Bhatia 1987) and language production (e.g. drafting
documents in a foreign language, which is a skill increasingly needed in
a globalized economy that involves multinational legal teams).
Increasingly apparent, however, is a shift in ELP teaching towards soft
skills. For instance, many recent textbooks of ELP have started to empha-
size soft skills, in addition to teaching the traditional legal English content
(Krois-Lindner and Translegal 2006; Krois-Lindner and Firth 2008). That
is only natural in view of modern patterns of international communication,
particularly among highly educated professionals, such as law school grad-
uates. In a globalized economy and integrated Europe, such professionals
not only increasingly work in multinational teams, but also need to mediate
texts and information originating in different linguistic environments.
The skill of mediation, thus, is highly relevant in the legal context. The
interaction with clients – in both spoken and written form – represents
a substantial part of the workload of many lawyers. This communication is
marked by shifting levels of expertise, where legal professionals should be
able to explain complex legal concepts in ways that are intelligible to clients,
thereby enabling them to make relevant choices on the basis of such medi-
ated knowledge. Importantly, this concerns mediation both within a single
language and across various language (see below).
As such, the soft skill of mediation should come to the focus of ELP
teachers and be practiced in legal English classrooms in more systematic
ways. In some cases, this will include the modification of existing or the
preparation of new materials that can be used in Legal English classrooms
to practice various aspects of mediation. As I show in the second part of
this text, such self-developed materials can be meaningfully included in
the Legal English syllabus, in order to teach students the main mediation
strategies as explained in detail in CEFR ID (90). Arguably, mediation as
a soft skill that is fundamental not just for inter-language communication
(as originally proposed in CEFR) but also for intra-language communication
across different levels of expertise. As such, skill is of paramount importance
in language-learning situations that involve the teaching of languages for
specific purposes (Chovancov´a 2016).
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Practicing the Skill of Mediation in English for Legal Purposes
2. Mediation and ESP
In its linguistic sense, the concept of “mediation”1 emerged in the 1990s
in connection with the Common European Framework of Reference for Lan-
guages (CEFR, 2001). This document distinguishes between four types of
language activities that should be in the focus when assessing the proficiency
levels of foreign language users. Mediation was thus aligned with three other
forms of language activities, namely reception, production, and interaction.
In the concept offered by CEFR, mediation consists of the skills of translat-
ing and interpreting and, thus, does not concern language behaviour that
has been seen as central under the earlier dominance of the communicative
approach to language learning, even though CEFR lists such activities as
summarising and paraphrasing texts and hints at the possibility of intra-
language mediation, cf.:
In mediating activities, the language user is not concerned to express his/her
own meanings but simply to act as an intermediary between interlocutors who
are unable to understand each other directly, normally (but not exclusively)
speakers of different languages. (CEFR 2001: 87, Section 4.4)
In its original form, however, CEFR did not provide an entirely adequate
definition of mediation, which was thus left without any elaboration in the
form of more detailed descriptors. For that reason, the notion of media-
tion has not enjoyed the attention it would deserve and has – until quite
recently – remained on the periphery of the interest of educational policy
makers and language learning professionals (for some exceptions in the field
of ESP, see Dendrinos 2006; Chovancov´a 2016). Nevertheless, the initial con-
ceptual inadequacy contained in CEFR, which appeared to place too much
emphasis on the “intermediary” role of mediators and the mere “transfer”
of meanings (see criticism in Byram and Hu 2013) has now been addressed
by a project of the Council of Europe’s Language Policy Unit (North and
Piccardo 2016a, b). Completed in April 2016, the project amended the defi-
nition, thus putting language professionals in a much better position to deal
with this phenomenon.
In this paper, I adopt the analytical framework of mediation proposed
by North and Piccardo (2016a) in the above-mentioned document. They
develop the descriptive scheme and illustrative descriptors for mediation
within CEFR by elaborating the various aspects of this skill and setting the
target competencies of learners. The rationale for developing this scheme
was to assess – more adequately – the linguistic competence of L2 speakers
according to the official “Common Reference levels” (i.e., A1, A2, B1, B2,
51
Barbora Chovancov´a
C1, C2) that are used to measure the communicative competencies of foreign
language users. In this way, the proficiency levels can be more adequately
linked to learners’ actual communicative behaviour.
Mediation is seen as including two key notions: (1) the co-construction
of meaning in interaction and (2) the movement between the individual and
social levels in language learning (North and Piccardo 2016a: 4). This ap-
proach acknowledges the fact that the construction of meaning is a dynamic
process that depends on the cooperation between all the parties involved
in a given act of communication – a fundamental premise of various in-
teractional approaches to human interpersonal communication (Locher and
Graham 2010) as well as in language pedagogy (cf. the notion of collabo-
rative learning; Gibbons 2003). In addition, this view holds that language
learning is concerned with the interface between the individual and the so-
cial. Thus, for instance, where an individual strives to produce a successful
act of communication, he or she inevitably does so within the broader so-
cial and discursive context manifested through the various discourse types,
genre conventions, as well as pragmatic competencies that language users
need to navigate (cf. Bhatia 2017).
The new CEFR sees the social aspects as having a central role in the
process of mediation. In this version, the new CEFR goes beyond the tra-
ditional view of mediation: it is no longer seen merely as a synonym for
“translation or interpreting” (as in the previous version). Instead, the term
has attained a considerably wider scope. Indeed, mediation is now recog-
nized as being comprised of four different types, namely linguistic, cultural,
social, and pedagogic (North and Piccardo 2016a: 8–12). This systemati-
zation acknowledges the multi-dimensional role that the skill of mediation
plays in diverse communicative contexts.
3. Mediation in legal English
So far, little has been written about mediation in language teaching,
perhaps with the notable exception of Dendrinos (2006), who deals with
the aspects of both teaching and testing. Similarly, the application of medi-
ation in the field of English for Specific purposes (ESP) has yet to be fully
explored. First attempts have, however, been made, e.g. concerning medi-
ation in Legal English classes (Chovancov´a 2016). More specifically, this
concerns the designing of mediation activities in both printed and self-made
materials for students of law, aimed at addressing the information gap cre-
ated by a necessity to mediate information across different languages, e.g.
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Practicing the Skill of Mediation in English for Legal Purposes
processing in a source text (e.g. a law or some other legal text) in one lan-
guage and rendering the information in another language. Clearly, this goes
beyond translation and interpreting because critical thinking and specific
cognitive skills are required (cf. the illustrative descriptors in CEFR).
However, mediation also applies to individuals working in one and the
same language. Such intra-language mediation (Chovancov´a 2016: 23) ac-
tually constitutes a quite common everyday communitive skill, though it is
particularly necessary in some professional contexts. In this type of media-
tion, an individual needs to communicate across different levels of expertise,
producing “alternative textualizations” (Cornelius 2010).
In the following, initially intra-language mediation is illustrated with
a concrete activity developed for first year law students (section 3.1), and
then sample tasks are provided that deal with the various dimensions of me-
diation: linguistic (section 3.2), cultural (section 3.3), social (section 3.4),
and pedagogical (section 3.4), which can be designed around the main ac-
tivity shown below.
3.1. Mediation and role play
Firstly a sample activity to see how an aspect of mediation can be
introduced through role play can be considered. While one of the traditional
tasks involves inter-language awareness (terminology translation), the role
play task extends the learning situation to intra-language mediation since
it involves communication in English only.
Example 1
Background: a lesson on property law for first year students in the sec-
ond term of their study. Language level B2. The topic is the law of
probate. The task is to become familiar with the textual and struc-
tural template of last wills and testaments (as well as some of the legal
background to this issue).
First, students are presented with an authentic template of a last will and
testament (offered by legal practitioners free of charge to the general public
in Florida, USA). The initial task is to become familiar with the material.
This is done by means of a translation activity, with students being asked
to translate key terms from or into their mother tongues. This quite simple
and straightforward task ensures that the students go through the docu-
ment carefully, making themselves aware of the technical vocabulary and,
more generally, the overall content (structure, customary content, typical
formulations, etc.).
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Barbora Chovancov´a
However, despite having “gone” through the document when perform-
ing the above-described task (i.e., skimming through the document, and
translating the highlighted terms), their reading can be very superficial.
A follow-up task was therefore designed with the intention to make the stu-
dents study the document in depth, a task that could come under the term
of “mediation”.
In a role play format activity, one student is assigned the role of a lawyer
while another acts out the role of a client – an elderly citizen. The “lawyer”
is asked to give advice to the “client”, who wants to dispose of his or her
property by will. The “lawyer” is to guide the prospective testator through
the template, explaining all relevant information, adapting the language so
that the client can fully understand the content.
In this way, students practice multiple skills. The task involves not only
the transmission and mediation of information, but also other important
soft skills such as reformulation and explanation. Students playing the role
of the lawyer need to be aware that their counterpart, the client, is a non-
lawyer. Moreover, because in this particular task (in order to emphasize the
point), the client is also an elderly person, it is not just that the information
needs to be given in an understandable way but also the communication
partner is to be treated with care and respect.
3.2. Linguistic mediation
A prominent place among the various aspects of mediation is held by
the linguistic aspect of mediation. As North and Piccardo (2016a: 8) point
out, students need to know “how to translate and interpret, more formally
or less formally, or transforming one kind of text into another”.
In any communicative act, the two key factors that will determine the
choice of linguistic means and the level of formality in a given situation are
the context of situation and the recipient of the utterance. For law students,
this means that they have to be linguistically sensitive, being able to adapt
their style according to the speaker and the situation. Upon assessing these
contextual variables, they have to be able to opt for legal terms and other
features of legalese when talking to another professional, and automatically
add explanations for the sake of clarity when talking to a client, adjusting
the level of formality accordingly.
Relevance for the sample activity
In the sample activity above, there are several instances of possible lin-
guistic mediation that can be used by students/teachers to develop aware-
ness of the right degree of formality and the extent to which professional
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Practicing the Skill of Mediation in English for Legal Purposes
language needs to be changed. The text, even though a relatively simple
but potentially legally binding document, can be filled in by an informed
laymen, provides ample opportunities to practice this type of mediation.
Particularly relevant in the context of the above-described activity is
intra-language mediation. It is realized through the necessity to summarise
an L2 text in L2. This concerns, for instance, the way terminology is han-
dled by students when mediating the text for their colleagues. Since the
template of the last will is rich in legal terms, it is therefore ideal for prac-
tice of linguistic mediation. Thus, students need to learn to assess which
terms are key to the understanding of the text and which are likely to be
difficult for their client. For instance, the student “lawyer” may seek to
explain the phrase “simultaneous death of spouse” as “this means if you
and your wife/husband die at the same time”. Alternatively, the practic-
ing of reformulation and explication of terminology may be initiated by the
“clients”, who can ask the “lawyers” to clarify certain terms of phrases.
Linguistic mediation is a core skill that any lawyer dealing with the
general public needs to acquire and internalize. It can be somewhat difficult
for first-year students of law, who strain to “speak like lawyers” in order to
show that they have actually grasped the concept. In other words, instead
of proudly using the newly acquired legal terms and phrases, the students
are guided in this activity to reduce the level of expertise and make their
utterances and explanations simpler, both as regards specific formulations
and terminology.
3.3. Cultural mediation
Linguistic mediation is very closely connected with cultural mediation,
which, however, extends beyond the language as such. While language use
is inextricably linked to culture, the situation becomes even more com-
plex when two different languages are used. Culturally-related issues then
inevitably emerge, requiring the attention of the person involved in the pro-
cess of mediation. This kind of mediation could be treated within the scope
of inter-language mediation.
As lawyer-client consultation is essentially about bringing about an un-
derstanding of the relevant legal issue, it also goes under the heading of “cul-
tural mediation”. As North and Piccardo (2016a: 8) observe, “it is a ques-
tion of working at a level sophisticated enough to preserve the integrity
of the source and to get across the essence of the meaning intended”. This
goes beyond paraphrasing the text and explaining terminology to lay people
(as in linguistic mediation), since the real issue is often a different legal cul-
ture, notably the differences between the Civil and Common law countries
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Barbora Chovancov´a
which the lawyers need to be aware of. Needless to say, this is sometimes
challenging for undergraduate students of law because, particularly at the
beginning of their studies, they may lack the knowledge of the relevant legal
culture (including their own).
Being familiar (at least to a certain extent) with the history and the
development of Legal English in common law countries will help students
when dealing with UK or US legal documents, such as the one used in
the sample activity. For instance, they will be familiar with various multi-
nominal phrases and doublets/triplets. Used to ensure precision, or in some
instances just for the aesthetic value of alliteration, such stylistic features are
a common occurrence in modern legal texts; yet despite the efforts of the
Plain English movement to eliminate some of them, that has led to the
situation that civil law countries are nowadays less prone to use strings of
words to denote a simple concept in their newly drafted legislation.
Relevance for the sample activity
It is therefore important for a lawyer to be able to address this issue
when assisting a client to understand a document, such as the one the
illustrated task. For instance, the student “lawyer” may feel it appropriate
to explain that the term “Last Will and Testament”, which – even though
comprising of two separate terms – refers to a single concept and a single
document.
Even though the main aim of this activity is to practice speaking skills in
English, particularly that of mediation, this is a good instance of “translan-
guaging” (Garc´ıa and Wei 2014), where additional knowledge resources need
to be drawn on in order to ensure successful communication. It would be
appropriate for the “lawyer” to explain that in his or her mother tongue,
i.e. Czech in this case, the “Last Will and Testament” can be translated
either as the general “posledn´ı v˚ule” (the equivalent of “last will”) or, more
officially, as “z´avˇet’ ” (i.e. “testament”), but not as a combination of both. In
some cases, other expressions are possible, e.g. the umbrella term “poˇr´ızen´ı
pro pˇr´ıpad smrti”. Some other culture-dictated and language-related pecu-
liarities include, for instance, the capitalisation of key terms in English.
There is also a possibility for some follow-up tasks that may reveal some
striking differences in the law between countries. In the Czech Republic, for
example, if the last will is written by hand, there is no requirement for the
signatures of the two witnesses to be attached. Interestingly enough, the
same is true about Kentucky, but that is an exception to the law in most
other US states.
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Practicing the Skill of Mediation in English for Legal Purposes
3.4 Social mediation
The third aspect of mediation is social mediation, which is closely con-
nected to the above-mentioned cultural mediation. This is acknowledged by
North and Piccardo (2016a: 9), who suggest that “[c]ultural awareness, of
course, applies within a language as well as across languages and cultures,
with consideration of idiolects, sociolects and the links between styles and
textual genres. It also concerns relating different sub-cultures: social and
professional, within the umbrella culture of a society”. This aspect is thus
related to various pragmatic competencies that language users draw on in
their everyday interactions with each other as well as the various interac-
tional norms that constitute their professional culture(s). It is thus hardly
surprising that “...the comprehension difficulty may not be due to language;
it may well be due to lack of knowledge or experience, to a lack of familiarity
with the area or field concerned” (North and Piccardo 2016a: 9).
Clearly, this is the area where the legal aspects of the lawyer-client
interaction come into play. After all, the difference between the level of
expertise and knowledge between the lawyer and the client forms the very
essence of legal consultation: the client comes to see the lawyer to obtain
legal advice; and much of the service provided by a lawyer to a client is
embedded in their social interaction.
Relevance for the sample activity
How is the social dimension of mediation applicable with respect to
the activity at hand? The individual involved in mediation acts as an “in-
termediary” who helps to “bridge gaps and overcome misunderstandings”
(North and Piccardo 2017: 85) also between various discourse communities.
In the case of the template of the last will – as well as other types of sample
legal texts found on the Internet – there is a disclaimer warning the user not
to rely on such generic texts entirely and to consult a lawyer. The full word-
ing of the template could be used as an example of useful phrases for social
mediation. A different example consists of the legal style that is typical of
the professional community of lawyers. Thus, the quote from the template
“I am married to Mary Smith, and all references in this Will to my wife
are references to her”, with all its specificity may illustrate the point. It is
an example of discourse used by the sub-group of professional lawyers, and
no other professional would put the same information quite like this.
Having discussed the linguistic, cultural and social mediation, which –
as has been shown – are quite closely intertwined and equally relevant to
the task, attention needs to be turned to the last type of mediation, namely
the pedagogic one.
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Barbora Chovancov´a
3.5. Pedagogic mediation
Pedagogic mediation offers a somewhat different perspective from the
other types of mediation in that it aims to develop the mental skills of the
recipient rather than impart relevant information across linguistic bound-
aries, cultural differences and social norms.
North and Piccardo see successful teaching as a form or mediation,
because “teachers and parents try to mediate knowledge, experiences and
above all the ability to think critically for oneself”, which, in their view
constitutes “cognitive mediation” (2016a: 10).
It may be argued that in lawyer-client interaction, knowledge is facili-
tated through “scaffolded cognitive mediation”. However, it is not the job
of the lawyer to help to develop their clients’ thinking but, rather, to think
on their behalf and offer them alternatives. Thus, in my opinion, pedagogic
mediation is not quite relevant to this particular context. Nevertheless, it is
directly applicable to Legal English teachers and teaching on a more general
level, which is an issue that deserves a more detailed attention in the future.
4. Conclusion
As shown in this article, mediation is an important soft skill that has,
so far, been largely overlooked in the teaching of foreign languages. How-
ever, with the most recent update of the CEFR, this situation is gradually
changing and the practice of mediation is coming to be seen as much more
central to effective language instruction than previously. With mediation,
a speaker acts as an intermediary, helping others to understand information
that is linguistically outside their reach. In this way, mediation bridges dif-
ferences in knowledge and requires the speaker to negotiate meanings across
different communicative styles, discourse norms and cultural contexts, both
within a single language and across different languages.
In the area of English for Specific Purposes in general and Legal English
in particular, the changed orientation calls for the need to modify existing
syllabi that tend to focus on precision (particularly in the area of terminol-
ogy) and learners’ self-expression, while mediation requires the speakers to
actively and consciously modify their linguistic output so that it becomes
maximally accessible to the recipients. Attention thus needs to be turned
to such communicative strategies as language choice, information selection
and processing in order to arrive at an optimally comprehensible message.
In this process, various aspects of mediation are involved: linguistic, cultural,
social, as well as pedagogic.
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Practicing the Skill of Mediation in English for Legal Purposes
As regards the practice of the skill of mediation in the ELP classroom,
a particularly suitable activity involves interaction with clients. Students can
be taught various mediation strategies (as explained in detail in CEFR ID),
which are extremely relevant for the practice of law. By roleplaying lawyer-
client interactions, students can engage in a communicative practice that
will be quite central to their future careers in legal consultancy, advisory,
etc. Indeed, this is one of the most important soft skills needed by legal
professionals in their interactions with the lay public, i.e. individuals lacking
knowledge of legal issues.
N O T E
1This is different from the legal term “mediation”, which refers to a form of alternative
dispute resolution (ADR).
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