Wednesday, March 30, 2011


Twins, especially before they learn to speak our language, seem to share their own secret language, and communicate in ways that outsiders cannot understand. The two boys in the video clip below (well worth watching, even apart from its adorableness) also demonstrate that the words spoken in a conversation are much less important than we think they are. Perhaps intelligible language even distracts us from understanding the real substance of a conversation. When the words are unintelligible, that allows us to observe more closely the gestures and facial expressions that constitute most of the real communicating that people engage in.

I might be fascinated by this video because I have twins of my own (teenagers now), and I still remember similar scenes of them. (I would post my own home movies, but they would probably not appreciate it.) But I also relate to this video because it reminds me of some of my best moments in mediation. Some of my most successful mediations sound to me just like this video. That's because I don't always understand the substance of the discussion as well as the participants do, although I try to, and I don't necessarily even need to understand the points they are making. The disputants have been living with the controversy for months or years. They have things to say to each other that they need to get off their chests. I, on the other hand, don't have a stake in the outcome, so I am not trying to push one particular point of view over the other. I don't always know what needs to be said. I just want to make sure that dialogue is taking place. Most importantly, I want to make sure that the participants are paying close attention to what the other side is saying, and demonstrating that they hear and understand it, even when they disagree. So when I see a dialogue like the one in this video, all I have to do is nod my head and encourage it to continue.

Of course, I know babies well enough to know that, as with litigants, a conversation like this one can turn ugly in a second. The mediator's role is to step in when that happens. Notice that near the end of this video, each party in turn looks back at the mediator (that would be whomever is holding the camera), perhaps for guidance and reassurance. Maybe it's comforting for the participants in any dialogue to know that an observer is present to help keep the discussion civil.


Anonymous said...

That video might as well show 2 kittens playing. It is absurd to suggest that the twins are communicating information or have their own language. They are playing.

Joe Markowitz said...

Thanks for your comment, Anonymous. You could be right that all they are doing is playing some kind of game. Also, much of the babbling that babies do may be meaningless. They might just be warming up their vocal cords for when they learn real words. It also occurred to me that what they might be doing is simply imitating adult conversations or arguments they have probably seen many times before.

On the other hand, even kittens communicate. And playing is a form of communication. And there seems to be some kind of deeper communication going on in this video also. Laughing in response to what someone else says has a meaning. So does shaking your head and waving your hand in front of their face. My guess is that even babbling babies understand some of these meanings. We just might not understand what their conversation is all about.

Scott A. Landers said...

Thank you for your response, Mr. Markowitz, but in that response you are using the terms "communication" and "meaning" in so broad a way as to include nearly anything and to exclude nearly nothing. If a boulder suddenly begins to slide downhill toward me I am informed, when I notice its motion, of an impending danger; the rock, however, does not communicate with me. Among humans laughter is a natural "expression," i.e. it is a natural behavior, just as much as crying, grimacing, etc., but hardly constitutes communication in any significant sense. Naturally, we do well to pay attention to non-verbal behavior as a source of information. None of this, however, has anything to do with the appropriate concerns of litigants as such or of a legal system.

The attempts to provide pseudoscientific bases for applauding the "expert" techniques of good listeners with law degrees is a weak substitute for rational argumentation. What is the reader supposed to make of the vague contention (made in the linked article "Listen With Your Eyes") that "93 percent of communication effectiveness is determined by nonverbal cues," for example? (93 persent of statistics are invented on the spot without any basis whatsoever, by the way.)

Many people do have a need for assistance in dealing with disputes, and it is nice to have help, sometimes even of a professional (but preferably non-legally-binding) sort. Family therapy, for example, is a legitimate enterprise. When legal disputes are handled by mediation designed to avoid the courtroom no matter what, however, very real dangers are posed to the integrity of a public system of justice. Such a system is quite properly concerned with preserving the social norms that govern the interactions of people prior to the emergence of a dispute, by upholding and enforcing those norms when disputes do erupt. Nonetheless, just as it is not the proper business of public tribunals to try to cure the underlying personal problems of litigants, I am suggesting that it should not be the business of private dispute resolution facilitators to get involved in the public business of law.

Joe Markowitz said...

Scott, thanks so much for taking the time to put down your thoughts. As much as anything ever posted here, your comment really goes to the heart of the issues I am trying to deal with in this blog. Is mediation a pseudoscience? Is mediation even legitimate, since it appears to do away with rules and norms? Is mediation "rational"? Is mediation antagonistic to the law? How should mediation interact with the traditional legal system?

These are really important issues as the mediation "profession" continues to struggle to define itself, and as the justice system also needs to justify itself to "compete" with ADR. I have dealt with some of these issues in previous posts. What I would suggest is that the distinctions between the legal system and mediation are not so black and white as might appear. We do think of the law as a rational process, but we also know that juries and even judges are swayed by appeals to the emotions. We think of the legal system as enforcing the rules by which we all conduct ourselves, but all of our social interactions are not governed by a legal code. Sometimes we work those interactions out ourselves. Courts sometimes have to delve into litigants' personal issues in order to resolve their problems. And mediators sometimes have to consider how the legal system's rules would treat a dispute in order to help the parties resolve it. When I do mediations, I often spend a lot of time with the parties' lawyers trying to predict how the case would play out in court. To me that is as much the business of a trial lawyer as of a mediator. So like it or not, the courts are already deep into the business of private dispute resolution, and mediators are deep into what you are calling the public business of law.

We need to keep thinking hard about all the issues you mention in your comment to keep trying to develop a more perfect system of justice.