My concern in the present dissertation is the argumentative specificity of mediation. Some annotations about argumentation have already emerged throughout the preceding chapters; however, the nature of argumentation must be defined thoroughly in order to understand the main concern of this dissertation.
In very general terms, argumentation is a constitutive part of human communicative exchange, namely a mode of discourse (Smith 2003). As such, argumentation is present in a number of communicative practices, discourse genres and social contexts. In argumentation, an arguer personally engages in proposing a standpoint – a position he/she is convinced of – to his/her interlocutor. The latter can accept or not such proposed standpoint, which can be a theoretical statement but also a proposal of practical action. What is distinctive of a sound argumentative practice is the
common research effort aiming to found a theory of argumentation embedded in the communication sciences.
199 Van Eemeren and Grootendorst (2004: 55) remark that argumentation is always a contribution to a communication process and that “argumentative discourse and texts are conceived as basically social activities”.
fact that the acceptance of such proposals is based on the critical testing of their validity;
in other words, the arguers commit themselves to prove their respective positions, analyse the reasons that support them, and decide for the most reasonable one.
It is already clear from this first and actually quite rough account of argumentation that this kind of critical commitment is essential in the decision-making process taking place in the parties’ discussion in mediation. Argumentation, indeed, is intended here not in the polemical sense associated to the verb to argue or to the noun argument in some uses in ordinary language. By the way, the polysemy of the terms bound to argumentation may actually have made someone doubt that this practice has anything to do with an ideal mediation attitude (see the discussion on Besemer 1999 presented in Chapter 2). As a matter of fact the meaning of reasonable confrontation and critical testing of arguments in support of given positions is very much compatible with the aim of the mediation practice. Significantly, Herrman, Hollett and Gale (2006:22) assume as one of the essential presuppositions of their comprehensive mediation model that “Verbalising individual positions and stories provides the speaker and listener with an opportunity to develop a greater understanding of underlying needs and to stimulate higher-level reasoning” (emphasis added). This observation highlights the issue of the quality of the parties’ decision, which in sound mediation practices should be supported by a healthy reasoning in order to be durable and to really meet the parties’ interests.
Now, the concept of critical testing and that of reasonableness are intrinsically bound and have been identified as central to argumentation (van Eemeren and Grootendorst 1994; 2004). The dimension of criticality (defined as adherence to evidence and correct reasoning) involves in argumentation a complex interplay of relevant aspects. The reasonableness demand, in particular, should not be opposed to the notion of rationality, conceived of as logical consistency and coherence, namely as non-contradictoriness of reasoning, which guarantees the truth of conclusions derived from true premises. However, rationality is not sufficient to found all the possible cognitive and pragmatic decisions a human being is anyhow obliged to face200; this turns out to be even clearer in the domain of conflict resolution, where, after the failure of Leibniz’s hypothesis to “calculate” a resolution of the dispute, it has been shown that pure rationality is not sufficient for taking into account the complexity of the dimensions involved in conflict201. In conflict resolution, as in the other domains of human social
200 See van Eemeren and Grootendorst (1994: 12): “We believe rationality to be a necessary but not sufficient condition for reasonableness”.
201 Indeed, Dascal and Marras (forthcoming) observe that the hypothesis of calculating the solution of all disputes was not completely embraced by Leibniz himself, who was conscious of its limits; he therefore introduced the hypothesis of a “judge of controversies” able to weight arguments rather than compute them. The judge of controversies seems to recall a more reasonable than only rational attitude. But in this relation it is worth quoting the entire passage by Dascal and Marras: “He explicitly formulated the idea of a characteristica universalis by means of which the contenders, instead of disputing endlessly would be able to resolve their differences by expressing them in a
life, a more complex attitude of reason is required, which must take into account the complexity of factors determining a situation. This kind of esprit de finesse is as difficult to define as essential for argumentative practices. Some of its essential traits have been discussed in Rigotti and Greco (2005), and then confirmed by the results of a semantic analysis of the term reasonable (Rigotti, Rocci and Greco 2006; see also Greco 2005a)202.
formal notation and then “calculating” the solution. But Leibniz, who was also, among other things, a jurist, a political advisor, and a participant in the endless negotiations for the reunification of the Christian Churches – in short, a practical man – knew very well that the discussion or calculative problem-solving model could not solve all conflicts. He realized that in most cases the solution could not consist in deciding demonstratively who was right and who was mistaken, for the simple reason that both parties were partially right and partially wrong, under some interpretation of their positions.
He believed that quite often the opposition between the parties could be overcome if each could be brought to recognize the “right” and “wrong” parts of his own, as well as of the adversary’s position, to weigh carefully their relative importance, and to be persuaded to give up what was wrong (or unacceptable to the adversary) in his position and to accept what was right (or acceptable to him) in the adversary’s position. None of this could be done in a purely mechanical or formal way, nor could it be expected that it would lead to absolute certainty. Instead, it required the active intervention of a
“judge of controversies”, capable of reformulating the positions in conflict and to use non-deductive types of arguments (based, for example, on probabilities, presumptions, defensibility, etc.) – in short, using arguments or reasons that, in his words, were not to be computed, but rather weighed. An alternative model of polemical exchanges and their resolution, akin to what we have been calling controversy, was thus elaborated by Leibniz, side by side with the strict logico-mathematical model and presumably complementary to it”.
202 Firstly, maybe the most typical and comprehensive sign of reasonableness is the effort to take into account all factors that are relevant for the concerned issue, including the context of the decision, and its implications. Typically, for instance, in mediation the decision about whether or not negotiating with the other party depends on a comparative evaluation of the alternatives at the parties’ disposal (to go through the juridical system, and so on). Moreover, arguers should consider the hierarchy of goals (teleological hierarchy) they are pursuing, by neglecting any minor incompatible goal. For instance, victim-offender mediation is not permitted in many countries except for juvenile crimes (see Chapter 2), because in juvenile justice the rehabilitation of the offender is considered a valuable goal.
Furthermore, reasonableness is defined by categorial adequacy in the definition of pieces of reality.
The respect of categorial adequacy also implies the choice of an adequate level of abstraction in describing a given situation. Both considering a too high and a too low level of abstraction is unreasonable: on the one hand, one loses the adequate consideration of the specific case he is dealing with; on the other hand, one is too dependent on the single case he is considering, which does not allow to generalise those aspects that are not proper of the specific situation but of a broader category.
It must be also considered that an argumentative move that is unsound in a certain context might be adequate and legitimate in another. Here, again, the difference does not lie in the rationality of the move, but rather in the reasonable comprehension of the context. In a first sense, an argumentative move can be adequate for a certain communication practice, whereas it might be forbidden in another practice. For instance, a scientific discussion aiming at resolving a certain mathematical problem excludes the use of threats; however, the use of threats is perfectly admissible, and actually used as a rhetorical instrument, for instance, in processes of international negotiation. In a second sense, adherence to actual circumstances also includes a precise and comprehensive “feeling” of the context where the argumentative intervention takes place. This ‘global feeling’ allows the arguer and the decision maker to understand whether a certain argumentative move is sound in a given situation.
Most decisively, what defines a reasonable attitude is the commitment to finding a resolution of the difference of opinion that is worthy of the human quality of the interlocutors. First of all, when trying to make a reasonable decision or verify the truth of a certain opinion, ‘two heads work better than one’. In fact, the interlocutors can help each other taking into account an important aspect that one of them might have neglected, or discovering a manipulation, or keeping a reasonable level of abstraction in defining a situation, etc. Secondly, each interlocutor in an argumentative exchange is committed to assuming a reasonable attitude. The argumentative interaction, thus, aims at promoting reasonableness by definition. Thirdly, a direct implication of this is that the arguer does not want to obtain his/her interlocutor’s assent at any cost; in fact, consent is not build through violence, but rather using language and reason for discussing and evaluating possible arguments. In conclusion, reasonableness, as it is reached through an argumentative interaction, involves the respect of the other’s reason and freedom.
Indeed, the very practice of mediation is founded on the belief that even in cases in which dialogue is blocked, the intervention of a third person, armed with purely communicative and argumentative means, can serve to the purpose of reasonably solving a conflict. This turns out to be consistent with the principle of optimism professed by Aristotle in the first book of his Rhetoric (see the translation by Rhys Roberts 1924):
“Rhetoric is useful because things that are true and things that are just have a natural tendency to prevail over their opposites”. Indeed, if human beings were not attracted by positive more than by negative, a role like that of a mediator would be not make any sense.
Within the pragma-dialectical perspective (van Eemeren and Grootendorst 1994;
2004), the concept of reasonableness is closely linked to the discussion between two arguers: where the standpoint of one is subject to the critical control of the other, it is possible to achieve a reasonable consensus, and to create a foundation for one’s own actions and beliefs203. Within this framework, ten constitutive rules for maintaining the requested standard of reasonableness within the discussion have been pointed out 204.
203 Within the Pragma-dialectical approach, reasonableness is one of the philosophical bases of argumentative analysis. In this relation, see van Eemeren and Grootendorst (1994; 2004: 18-22) and the discussion in Rigotti and Greco (2005) and Rigotti, Rocci and Greco (2006).
204 See (van Eemeren and Grootendorst 1992). 1. The freedom rule: Parties must not prevent each other from putting forward standpoints or casting doubt on standpoints.
2. The burden-of-proof rule: A party who puts forward a standpoint is obliged to defend it if asked to do so.
3. The standpoint rule: A party’s attack on a standpoint must relate to the standpoint that has indeed been advanced by the other party.
4. The relevance rule: A party may defend his/her standpoint only by advancing argumentation related to that standpoint.
5. The unexpressed premise rule: A party may not falsely present something as a premise that has been left unexpressed by the other party or deny a premise that he/she him/herself has left implicit.
The rules owe their validity to the fact that they make the implications of a truly argumentative attitude explicit. In this sense, their nature is not normative or regulative, but it is rather constitutive, as it defines the essence of an argumentative commitment.