CONCLUSION

The adversarial mode of argumentation has a long standing within the United States. Indeed, it is the mode used in our judicial system for litigation. Two representative’s each with opposing viewpoints, advocate on behalf of their client’s in front of a neutral 3rd party. Each side is armed with certain skill sets, and are equipped with relative facts. They present finely tuned arguments, both written and orally to promote their viewpoint as sound. In doing so, both sides are empowered to seek the truth and through this method the truth shall be evident to the 3rd party decision maker.

But the system, like all systems in which fallible beings are involved, is flawed. This system places upon its advocates a duty to their clients as high, if not higher, than the duty to uncover the truth. It assumes that there is only one truth and that one of the two sides represents it. It is a binary system that is competitive at its core, leaves little to no room for gray areas and while oftentimes dealing directly with people fails to take into consideration the depth and breadth of human emotion. It is factual, exact, and cold. Critics argue that the system does not harbor relationships between people and leaves at least one side with feelings of discontent.

Dialogic argumentation, however, takes the human experience into great consideration. Instead of finding a winner and loser, or someone to blame, it attempts to take in the incident as a whole and through dialogue will find a commonand hopefully, a solution that is acceptable to all parties. All facts and evidences from both sides are laid out freely and openly as it is a quest for knowedge than the intangible and subjective truth.

Studying law I was familiar with the adversarial approach to argumentation but had practiced (unknowingly) the dialogic method with friends and peers for as long as I could remember. My question was: What, if any place, does dialogic argumentation have in the legal system?

My textbook for my Argumentation class, Dialogue and Deliberation , would have you believe the dialogic argumentation is utterly absent from the legal system and all disputes are litigated on the courtroom floor. Nothing could be further from the truth. Only 5% of court cases actually make it to trial. The remainder are dismissed, dropped, negotiated or mediated beforehand. Even when litigation occurs there are methods such as restorative justice that hekp alleviate any damages done by the adversarial process.

The fact of the matter is, the law has so intertwined itself into the lives of its citizens that the one method that was effective 200 years ago is not as relevant as it once was. The system was built for dealing with human conflicts such as murder and land ownership, not custody battles over a child with 3 parents or the acquisition of stem cells. Adversarial argumentation does not belong in a divorce proceeding. It does belong in an instance where you have a child victim that needs to have an advocate. With the great myriad of human problems it is not a question of which method is best to use in the courts. It’s which methods are best for the situation whether it’s dialogic argumentation, therapeutic jurisprudence, restorative justice, collaborative law, preventive law, creative problem solving, problem solving courts, transformative mediation, holistic law, procedural justice, or good old fashioned adversarial argumentation. We limit ourselves and our country, by not educating our lawmakers, law enforcers, and law advocates, as to better and more personal methods of dealing with each other. People like Thomas D. Barton and Ian Ragsdale are striving to make our less than perfect legal system more perfect. By implementing various methodologies and implementing them wherever possible they are laying the foundation for the inevitable change and improvement to our existing legal system.