Adversarial and Dialogical...Two Sides of the Same Communication Coin

I had originally taken COMS160-Argumentation assuming that it would provide me with a head start on debating effectively and successfully winning arguments going into law school. I could not have been more wrong.

What I seek (sought?), what is valued in my soon-to-be profession is what is known as adversarial argumentation. In regards to the practice of law this mode of communication exists when opposing parties involved in a lawsuit litigate to the best of their abilities, and all evidence and every rule of law that is favorable to it's theory is laid before the court, there is the pragmatic assumption that in most cases the truth will be discerned. This is clear cut. Black and white. Winner and loser. Guilty or not guilty.

What I had learned in COM160 was what is called dialogical argumentation, which approaches a disagreement differently. Whereas the adversarial approach comes to the table with the default assumption that the other person's views are wrong, the dialogic approach comes with the default assumption that the other person's views are right but the first party does not understand why they are right. It is through this assumption that questions are asked instead of statements made. Inquires, and therefore understanding of the other person's views creates a less toxic environment and is more likely to foster a mutuality and convergence on a common ground.

Premonitions of this do exist in our current legal system. Many courts have made Alternative Dispute Resolutions mandatory in certain types of cases. Through mediation, a third party guides both parties involved in litigation acting as the middle man, as it were, for dialogical communication. While all that is well and good, this sort of communication exists only in optional capacities outside of the actual practice of law, outside what attorneys and judges are trained to do. Does dialogic argumentation fit and if so, in what way does it, into our concept of American jurisprudence? Looking at certain aspects or law, namely contract law and cases of negligence, most definitely. What about the rest? What about rape? What about murder? For this project, I will interview different members of the legal field, from professors, to attorneys, to judges; not only to obtain their insight regarding dialogical argument in the legal field but also to form my own judgments on if and how it would be possible.