Alternative dispute resolution (ADR)—in the forms of arbitration, conciliation and mediation—has become increasingly popular in (inter)national trade as an empowering alternative to judicial adjudication in settling commercial and other disputes. In today's legally pluralistic environment, disputing parties may choose mediation to jointly work towards a mutually acceptable resolution of disagreement, with the aid of an impartial mediator. They might also resort to arbitration to reach a mutually binding decision in the form of an award, which is enforceable by law. This consensual approach to resolving a difference of opinion is like litigation in effect, but it is more informal, private, confidential, cooperative, time-saving, and economical.
Contrary to the spirit of ADR, however, arbitration has become hybridised and colonised by litigative processes and procedures. For example, Michelle Sala shows that the discursive construction of online dispute resolution (ODR) in cross-cultural media texts in today's multilingual and multilegal contexts of international arbitration demonstrates that expert arbitrators make use of complex textual markers (e.g. evidentiality and direct address) and argumentative/rhetorical strategies (use of causal/contrastive conjunctives) to enhance the persuasiveness and coherence of awards. They also cater for dialogistic positioning of the disputants in arbitration proceedings and borrow from legalese jargon to confer an intertextual dimension on arbitration as a performative text. Other textualisation strategies (e.g. use of Latinisms, archaism, hedging, epistemic modulation, passivisation, cross-referencing to legal texts, formulaic language, depersonalisation, semantic density through nominalisation, premodification) ensure proper interpretation of the resulting texts and have a “foregrounded perlocutionary function” (185).
Hence, despite the interpersonal and promotional tone of web-mediated dispute resolution texts, the encroachment of litigative discourse is evident in a more conservative and legally oriented judicialisation of ODR. Disputants resort to legal reasoning to reach rational resolution of controversy. The tendency to borrow from legal discourse, however, deprives international commercial arbitration of its integrity, “simplicity,” and “lightness of touch” (Chiara Degano, p. 192). Patrizia Anesa shows that verbal and interactional strategies (e.g. turn-taking allocation) deployed in arbitration proceedings in business-related disputes in Italy, for instance, are similar to those in a conventionalised litigative setting (they are standardised and even predictable), though the disputants retain considerable agency.
Arbitrators promote the creation of a precise, easified, and all-inclusive textual genre (e.g. “if-clauses” cater for a variety of possible scenarios). This all-inclusiveness is realised through the use of complex syntactic structure and the modality system. For example, the modal verb shall is used to signal futurity and obligation while may confers a “deontic discretionary power, privilege or a right” (Girolamo Tessuto, p. 256). Strategic ambiguity, however, might result as a consequence of the increasing influence of legal discourse on ADR, especially in adjectival and adverbial forms (e.g. serious consequences). Similarly, according to Celina Frade, arbitral clauses might contain linguistic pathologies and/or faulty translation (such as the misuse of terminology), hence the need to use English as a lingua franca of international arbitration. This blurring of genre boundaries has created new realities, in which interdiscursivity has become the main common denominator of increasingly converging types of discourses of dispute resolution.
