language, morals, and conceptual ...two men, frank luntz and george lakoff, have stood at the...

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LANGUAGE, MORALS, AND CONCEPTUALFRAMEWORKS IN DISPUTE RESOLUTION:

ESTABLISHING, EMPLOYING, ANDMANAGING THE LOGOS

Michael T. Wawrzycki*

I. INTRODUCTION

Any lawyer knows that words and language are important. Asingle word can derail a painstakingly written contract; the charac-terization of a would-be killer as a victim framed by racist policeofficers, rather than a jealous husband, can change the outcome ofa case. Yet like many maxims, this important lesson is often forgot-ten when one is not confronted with the direct principles of wordsand language. Moreover, even most lawyers do not fully under-stand how to appropriately utilize the language tools that canchange outcomes: myopically focusing on specific issues or charac-terizations rather than the overall conceptual frames.

Indeed, even those who understand general framing principlesrarely understand how these frames can shape an entire discourse,simply by controlling the language—and therefore the choices—that are available to persons or parties. In addition, few realizehow important moral grounding is to these frames. This is espe-cially important for lawyers, who are often seen as hired guns: will-ing to say anything to successfully represent their client.Therefore, in order to surmount this skepticism, lawyers in disputeresolution should approach their clients’ needs with a moral ratio-nale that would make agreeing with their position the only choicethat makes sense. At the very least, this will inscribe a counter-balancing sense of guilt on the other party that may enable thenegotiator to enhance the deal. At best, it can result in total acqui-escence by the opposing party.

Two men, Frank Luntz and George Lakoff, have stood at theforefront of the language framework revolution in the political

* Associate In-House Counsel, Oreck Corporation, New Orleans, LA. J.D. 2006, TulaneUniversity School of Law; 2001 M.A., 1998 B.A., Binghamton University. The author would liketo thank Professor Eric Green for making this Article possible. The author would also like tothank Lynn Becnel and Jeremy Ross for their advice and support. I express the following viewsstrictly in my personal capacity; they can in no way be attributed to the Oreck Corporation.

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210 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 8:209

arena,1 and Luntz, at least, is ready to bring it to lawyers.2 Thus, aprudent lawyer entering a dispute resolution will need to be morecautious than ever with the words used and the choices such lan-guage can create—all the while being critical of language thatworks against one’s client. In particular, the use of frames shouldconcern lawyers involved in dispute resolution because many ofthese processes are the result of business disputes, and Luntz hasalready made extensive inroads into making business people bettercommunicators.3

The key difference between Luntz and Lakoff is that Luntzpolls the American public directly, and so feeds off of their re-sponses, interests, assumptions, and values,4 while Lakoff, a cogni-tive linguist, has strived to figure out why people give the responsesthey do.5 Luntz has been tremendously successful;6 however, hedoes not come cheap.7 Although his theories have much to con-tribute to the study of language and framing, they are not enough ifa person cannot afford to or chooses not to spend their resourceson his polls. Therefore, to otherwise take advantage of the powerof language and framing—and to be able to defend against it—onemust understand why people believe what they believe and supportwhat they support. Ultimately, this requires understanding morals

1 Michael Erard, Frame Wars, TEXAS OBSERVER, (Nov. 5, 2004), available at http://www.texasobserver.org/article.php?aid=1790.

2 Frontline: The Persuaders – Interview with Frank Luntz, President and CEO, Luntz Re-search Companies (PBS television broadcast Dec. 15, 2003), available at http://www.pbs.org/wgbh/pages/frontline/shows/persuaders/interviews/luntz.html [hereinafter Frontline: Luntz].

3 Luntz Research Companies, Dr. Frank I. Luntz (2004), http://www.luntz.com/FrankLuntz.htm (“More than a dozen Fortune 100 companies have turned to Dr. Luntz for communicationguidance, from Merrill Lynch to Federal Express, Disney to American Express, from AT&T toPfizer, from Kroger supermarkets to McDonalds to the entire soft drink and motion pictureindustries. Frank has also been retained by Internet innovators like Ebay, MP3.com and 1-800-Flowers.com, as well as some of the largest business associations, from the Chamber of Com-merce to the National Association of Manufacturers to the Business Roundtable.”).

4 See Now with Bill Moyers: Politics and Economy – Frank Luntz (PBS television broadcastJul. 2, 2004), available at http://www.pbs.org/now/politics/luntz.html (follow “Watch the Video”hyperlink) [hereinafter NOW with Luntz].

5 GEORGE LAKOFF, MORAL POLITICS 12 (2d ed. 2002).6 Luntz Research Companies, supra note 3 (“Time magazine named him one of ‘50 of R

America’s most promising leaders aged 40 and under’. . .the ‘hottest pollster’ in America ac-cording to the Boston Globe. . . one of the four ‘Top Research Minds’ by Business Weekand. . .the winner of the coveted Washington Post ‘Crystal Ball’ award for being the most accu-rate pundit in 1992.”).

7 Frank Luntz, http://www.dkosopedia.com/index.php/Frank_Luntz (last visited Dec. 8,2005) (noting that Luntz was paid about $80,000 in 2002 and 2003 for working on Bill Simon’scampaign to be governor of California).


2006] FRAMEWORKS IN DISPUTE RESOLUTION 211

and emotions and applying this knowledge to the relevantsituation.8

II. LANGUAGE

A. The Logos as a Means of Control

Whether in a contract or otherwise, language is the means bywhich persons structure their interactions with each other and theworld around them.9 For a lawyer, using the right word is impera-tive. However, language is never enough on its own. Lawyersmust be sure to put forth the correct meaning for each word. Un-fortunately, the importance of lexicology in modern society israrely acknowledged outside of academia or the publishingworld.10 Yet, these words, or the use of them, of the logos, servesas a metaphor of historically created symbols, which are both im-manent in and out of the representation of history, yet polyvalentin practical application.11 To many academics, this logos means a“diagram of a mechanism of power reduced to its ideal form.”12

Thus, control of the logos, or of the language employed, in the le-gal context, is a reduction of power to one’s clients’ interests.

From this discourse, it becomes apparent that it is not enoughto simply have the facts on one’s side during dispute resolution.Rather, the representation of those facts will be determinative.Some lawyers would use techniques such as the Socratic Method indispute resolution as a method to retrieve the “truth” from an op-ponent or from two opposing parties in a mediation. Yet this the-ory presupposes that there is only one “truth,” rather thancompeting paradigms of “truth.”13 Perhaps, in part, this stemsfrom an intellectualism born in the Era of Enlightenment: that alllogos should be taken literally and, from this, answers will follow

8 See LAKOFF, supra note 5, at 13; Frontline: Luntz, supra note 2. R9 Jeffrey M. Lipshaw, The Bewitchment of Intelligence: Language and Ex Post Illusions of

Intention, 78 TEMP. L. REV. 99, 103 (2005).10 David A. Dilts, Of Words and Contracts: Arbitration and Lexicology, 60 DISP. RESOL. J.

41, 42 (2005).11 WILLIAM V. SPANOS, AMERICA’S SHADOW 7 (2000).12 MICHEL FOUCAULT, DISCIPLINE AND PUNISH 169 (Alan Sheridan trans., Vintage Books 2d

ed. 1995) (1977).13 Compare John W. Cooley, A Classical Approach to Mediation - Part II: The Socratic

Method and Conflict Reframing in Mediation, 19 DAYTON L. REV. 589, 597-603 (1994), withSPANOS, supra note 11, at 12. R



logically, and if one simply shares the facts with others, that will beenough.14 Or, in other words, “the truth shall set you free.”15 Butbecause there is no one authoritative truth, the “truth” is neverenough; it must be framed correctly.16

B. Interpretation of Language

During dispute resolution, language must be carefully defined.The “plain meaning” of words is dynamic and able to change overtime; a definition supplied, however, is static.17 Nonetheless, nego-tiators sometimes make the mistake of simply referring to a dic-tionary definition, which is not enough.18 Even assuming thatdefinitions remain the same over time, different sources of worddefinitions can differ in important ways.19 Consider the followingexample:

A union could argue, based on the OED definition, that con-tract language requiring the employer to “consult with the unionbefore subcontracting” requires the employer to “seek permis-sion or approval from” the union. On the other hand, manage-ment could contend, based on the definitions in Merriam-Webster’s and American Heritage, that all that was contem-plated was to “seek advice” from the union.20

Clearly, those following the “plain meaning rule” have much moremanipulability in their power than one might otherwise assume.More than anything, what this highlights is that words and mean-ings are ultimately controllable. If one chooses not to manipulatelanguage, one risks that the other parties in a conflict will.

Note that the use of the word “manipulate” here is intended tohave a mechanical meaning; that is, as one might manipulate a toolto fix a broken machine. Some, like Frank Luntz, take offense tothis word; he would rather call such use of language “enhancing

14 See Bonnie Azab Powell, Linguistics Professor George Lakoff Dissects the “War on Ter-ror” and Other Conservative Catchphrases, U.C. BERKELEY NEWSCENTER, Aug. 26, 2004, availa-ble at http://www.berkeley.edu/news/media/releases/2004/08/25_lakoff.shtml [hereinafter PowellLakoff Interview].

15 Id.16 George Lakoff, Simple Framing, ROCKRIDGE INSTITUTE, http://www.rockridgeinstitute.

org/projects/strategic/simple_framing (last visited Dec. 3, 2005).17 See Dilts, supra note 10, at 42. R18 See id. at 42-44.19 Id. at 43.20 Id. at 44 (comparing definitions of the word “consult”).



communication,” or as “education.”21 To such critics, “manipula-tion” has a negative connotation, which implies a change of para-digm forced by the speaker, rather than a mere simplifying of theprocess that allows one to better explain the situation.22 Such criti-cism notwithstanding, to imply that supplying others with nuancedlanguage that presents a certain connotation in place of another isnot power seems disingenuous. Even Luntz acknowledges thatlanguage can change paradigms, that it can change history.23 Thus,such employment of the logos, when calculatingly used, seems bestdefined as “manipulation.” Although, with that said, there is noreason to put a negative connotation on this type of languagemanagement.

C. Examples of Structuring Language

The power of language can best be demonstrated by using ex-amples. By understanding how words create meaning, one can be-gin to discern how power can be garnered from employing words inparticular arrangements. Three such examples of basic uses of thelogos are the psychological effect of the word “not,” the “prospecttheory,” and “risk aversion.”

At a cognitive level, people tend to ignore the word “not.”24

That is, if a person says that an action makes others “safer,” and anopponent to that action counters by saying that people are “notsafer,” listeners will only hear the word “safer.”25 Therefore, themessage that people are “not safer” will fail. Thus, what the sec-ond actor would need to say is that the action in question has madethings “more dangerous.”26 Thus, the words which one uses to re-spond to another’s claims can define the efficacy of the counter-claim.

Another example of how different language representationscan influence decision-making is explored in Daniel Kahneman

21 See Frontline: Luntz, supra note 2. R22 Id. Luntz takes offense to this term in the public arena. Practitioners should use the same

caution. In the context of this Article, however, there is a greater need for accuracy thanrepresentation.

23 Id. 24 See, e.g., NOW with Bill Moyers: Politics and Economy – George Lakoff, Founder,

Rockridge Institute (PBS television broadcast Jul. 23, 2004), available at http://www.pbs.org/now/politics/lakoff.html [hereinafter NOW with Lakoff].

25 See id.26 See id.



and Amos Tverskys’s “prospect theory.”27 The theory is that theprospect of loss has a greater impact on decision-making than theprospect of an equivalent gain.28 One might think that a personwould be equally happy about finding ten dollars as they might besad about losing ten dollars.29 Moreover, if a person finds or losesone-hundred dollars, they should be ten times happier or sadderthan if they had found or lost ten.30 However, Kahneman andTversky have shown that this is not true.31 People are proportion-ately much happier when finding a small amount; thereafter, theirhappiness does not increase in proportion to the amount of moneyfound.32 Conversely, the psychological loss felt over losing moneyincreases proportionately faster than the ratio of money found topsychological feelings of gain.33 This study supplies an invaluableinsight into human thought.34 One should always remember that aperson’s first priority is likely not to lose; only secondarily will peo-ple seek to make gains. Therefore, decisions made in terms ofavoiding possible loss should motivate a person more than framingthe same decision in terms of possible gain.

Lastly, “risk aversion” is the principle that persons will pay aninordinate cost to lock in a certainty of an event, while shying awayfrom results that have even minor degrees of risk.35 In somesenses, this phenomena is corollary to the “prospect theory.” Inaddition, people are more willing to take risks that they are famil-iar with rather than new and strange risks.36 Therefore, use ofwords connoting certainty and familiarity gain strength when tryingto resolve a dispute.

Nonetheless, as powerful as language is, it is only as useful asit is carefully put together. An effective use of logos is not merelyusing individual words correctly, but placing them within an effec-tive dispositif, where the overall linguistic apparatus has been pre-

27 See, e.g., Edward J. McCaffery & Jonathan Baron, The Political Psychology of Redistribu-tion, 52 UCLA L. REV. 1752 (2005) (discussing Kahneman and Tversky’s theory).

28 See id.29 Kelton Rhoads, Risky Behavior and Negative Framing: The Roots of Modern Framing

Research, WORKING PSYCHOLOGY (1997), available at http://www.workingpsychology.com/riskybeh.html.

30 Id.31 Id.32 See id.33 See id.34 Id.35 Helaine Scarlett & Dwight Golann, Why Is It Hard for Lawyers To Deal with Emotional

Issues?, 9 DISP. RESOL. MAG. 26 (2003).36 Id.



arranged to suit one’s needs. To do this, one must understand howto build frames.

III. FRAMING PRINCIPLES

Framing is about telling the truth from a certain point ofview.37 It establishes a way of doing so articulately, while also vig-orously and in a straightforward manner.38 The only caveat inframing is that one must never lie.39 The frame must establishmoral conviction and ensure an ease of use that brooks no hesita-tion.40 Doing so correctly allows one to manipulate the choice al-ternatives another has in a discourse, and therefore enables theframer to influence how others think and to obtain their consentwithout ever even giving the impression that one is attempting tobe persuasive.41 Instead, one merely creates the impression of put-ting forth a set of simple truths which can be accepted or denied,whereby the framer’s choice is the obvious choice.42 Or so itseems.

Were a person subject to framing to understand what was hap-pening, it might seem unfair.43 But it is not unfair.44 It is effec-tive.45 Framing simply recognizes how people think and allows oneto use that knowledge to one’s advantage.46 When done right, theframing should be invisible.47 It should give the impression thatthe world is simple, rather than that one has simplified the issue.48

Moreover, failing to build effective frames allows one’s oppo-nent to control the language of the discourse, and if that opponenthas built their frames correctly, that will leave the non-framer—who chose to take the allegedly moral high ground—at a substan-

37 Lakoff, supra note 16. R38 Id.39 Frontline: Luntz, supra note 2. R40 Lakoff, supra note 16. R41 See Kelton Rhoads, Three Framed Victims, WORKING PSYCHOLOGY (1997), http://www.

workingpsychology.com/3victim.html.42 See id.; see also SPANOS, supra note 11, at 149, 166. R43 See NOW with Lakoff, supra note 24. R44 Id.45 Id.46 See id.47 Erard, supra note 1. R48 Id.



tial disadvantage.49 That is not doing the right thing. It ismalpractice.

More than one observer has noted that apparently inconse-quential changes in how one presents an issue can cause a dramaticshift in results.50 A perfect example is the Republican Party’s re-framing the issue of estate tax. For years, the Party battled to elim-inate this tax and failed.51 Luntz explained why the publicchanged their stance, how it happened, and the reason it was moralto bring about such change:

The public wouldn’t support it because the word “estate” soundswealthy. Someone like me comes around and realizes that it’snot an estate tax, it’s a death tax, because you’re taxed at death.And suddenly something that isn’t viable achieves the supportof 75 percent of the American people. It’s the same tax, but no-body really knows what an estate is. But they certainly knowwhat it means to be taxed when you die. I argue that is a clarifi-cation; that’s not an obfuscation.52

Luntz has a point. As long as one does not lie, one cannot beblamed for simply choosing better words with which to speak. It isexactly what politicians, lawyers, and negotiators have been doingfor millennia.

To be successful, framing must be viewed as both right andsensible.53 But, the frame is not effective on its own, it must becontextualized. To be sensible, it must fit into a system of intercon-nected frames.54 To be right, that set of frames must fit into one’smoral worldview.55 Doing both will build an effective, idealizedlinguistic discourse, or logos.

All persons have their own view of what is right and wrong.Some base these beliefs on religion, some natural law, others phi-losophy or other logical discourses of humanly reason. Yet quiteoften, what one believes is right or wrong stands in binary opposi-tion to the beliefs of someone who no less sincerely holds the in-verse proposition to be true. How is this possible? Becausedifferent people believe different things: they have different moral

49 See Lakoff, supra note 16. R50 See e.g., Kelton Rhoads, Media Framing, WORKING PSYCHOLOGY (1997), available at

http://www.workingpsychology.com/mediafr.html; Frontline: Luntz, supra note 2; LAKOFF, supra Rnote 5, at 389-407. R

51 Frontline: Luntz, supra note 2. R52 Id.53 Lakoff, supra note 16. R54 Id.55 Id.



worldviews. Therefore, one must understand other persons, recog-nize where they are coming from, and know in what they believe.Only then can one properly communicate to the opposing side howone’s interests—though opposed to their own—may be moremoral.

IV. MORAL WORLDVIEWS

What makes Lakoff’s method of framing different from anyother lawyer’s efforts to “frame the case” is a moral worldview.56

When a defense attorney “frames the case” to make his or her cli-ent look like a good person who was either disinterested or incapa-ble of the offense that person allegedly committed, it is clear to theopposing counsel, judge, and jury that the attorney does so to fulfilla fiduciary duty to the client and in an effort to win the case. Simi-larly, when the general counsel for a large software company sits atthe table with representation for a small start-up company to nego-tiate over antitrust allegations, it is understood that the “framing”of the larger company as a good company who likes to play fair andencourage competition elsewhere comes from a very biased pointof view and is put forth merely in an effort to win the negotiationsand avoid an expensive litigation process. That is, in the adver-sarial context of litigation and dispute resolution, there is a pre-sumption that any sincerity by one side, if not disingenuous, is atleast influenced by a subconscious bias.57

Yet what all of these “framings” lack is a cognitive moralworldview that would grant authority and legitimacy to theseframes. In Moral Politics, George Lakoff traced the multiplicity ofpolitical worldviews to two moral prototypes, both of which re-volve around metaphors for the family: the Strict Father and theNurturant Parent.58 To Lakoff, these are not conscious identities,but rather “the common, unconscious, and automatic metaphor ofthe Nation-as-Family that produces” this phenomenon.59 The fol-lowing subparts explain these models in more detail.

56 See id.57 Moreover, the same phenomenon has been observed between lawyers and their clients.

See Dwight Golann, Cognitive Barriers to Effective Negotiation, 6 ADR CURRENTS 6 (2001)(noting the propensity of defense and plaintiff advocates to predict greater probabilities thattheir own side will win, based on the exact same set of facts).

58 LAKOFF, supra note 5, at 13. R59 Id.



A. The Strict Father Model

One of the two moral worldviews that Lakoff has identified inhis cognitive studies is the Strict Father model. Under this theory,the metaphor of the Strict Father explains how people interpret thenature of the world around them, and thus dictates how it shouldbe run. Lakoff explains the Strict Father as a model under which

it is assumed that the world is, and always will be, a dangerousand difficult place. It is a competitive world and there will al-ways be winners and losers. Children are naturally bad sincethey want to do what feels good, not what is moral, so they haveto be made good by being taught discipline. There is tangibleevil in the world and to stand up to evil, one must be morallystrong, or “disciplined.”60

One who follows this moral worldview generally assigns prioritiesto self-control and self-discipline in order to better combat bothexternal and internal evils.61 This type also believes in, and expectsfrom others, obedience to strict guidelines, authority, and other be-havioral norms.62 The Strict Father moral worldview dictates thatall are free to pursue their own self-interest, that the overall inter-ests of everyone will be maximized by so doing, and that by usingthe aforementioned attributes in one’s endeavors, one achievesself-reliance.63

Key to the metaphor of the Strict Father is a collection ofother metaphors, which all fit into the overall framework. Firstamong these is the metaphor of Moral Accounting.64 To a personwho acts under this model, the system of rewards and punishmentsis very important.65 Think of familiar phrases such as a person is“morally bankrupt,” or the idea that one has been lucky, so his orher luck is “due” to run out.66 These phrases serve a metaphor thatthe “Moral Books” are kept somewhere—be it by god, nature, orsimply in the inherent state of being—and that each action accrueseither a moral credit or debit.67 The Strict Father thus believes that

60 Rockridge Institute, The Conservative Worldview, http://www.rockridgeinstitute.org/projects/strategic/nationasfamily/sfworldview (last visited Dec. 3, 2005). For a more thoroughdiscussion of this model, see LAKOFF, supra note 5, at 65-107. R

61 LAKOFF, supra note 5, at 35. R62 Id.63 Id.64 Id. at 68.65 Id.66 See id. at 51, 57.67 Id. at 44-45.



those who have succeeded in life are morally superior; this high-lights the role of competition for such a person.68 Therefore, thosewho have failed in life are morally inferior.69 This belief colors allother beliefs.

In order to be successful under the Strict Father model, onemust have Moral Strength.70 Then, once one has been successfuland proven their moral worth, one has a responsibility to instillthat strength in those under one’s authority.71 As mentionedabove, obedience is an important trait to the Strict Father. Thistrait is central to this worldview because Strict Father-types assumebasic hierarchies, such as god having dominion over humans,humans having dominion over nature and animals, and adults hav-ing dominion over children. The key is that this dominance alsomaps moral authority in the same order.72 More telling, the meta-phor of Moral Strength extends this moral authority to those thatare successful, i.e., the rich and powerful, over those that have notbeen successful, i.e., the indigent and weak.73

Moral Authority then leads to the metaphor of Moral Bounda-ries.74 The Strict Father believes that tradition has handed downthe “safe path” of morality and that those who stay on this pathwill lead a moral life.75 However, those who deviate from thispath, by choosing alternative moral viewpoints (on any subject),are a threat because they lead the way for others to deviate. Thatis, they have shown that this alternative lifestyle is also safe, be-cause they have walked down this path and have not come to asudden demise.76

Lastly, the metaphor of Moral Self-Interest completes the ba-sic framework. This metaphor relies upon the idea that the sur-rounding world is neutral: that hard work is all it takes to succeed,and that well-being is measured in wealth.77 But to get to this suc-

68 Id. at 68.69 LACKOFF, supra note 5, at 68.70 Id. at 72-73.71 Id.72 Id. at 104-05. The traditional model also includes the dominance—and thus moral superi-

ority—of men over women. See infra note 73 and accompanying text. For some Strict Fathers Rthis is still true (even female adherents to the model), whereas others have rejected this notion,but keep the rest of the worldview intact. LAKOFF, supra note 5, at 104-05. R

73 LAKOFF, supra note 5, at 104-05. R74 Id. at 85.75 Id.76 Id.77 Id. at 94-95.



cess, one must do so on one’s own.78 One cannot pursue this self-interest efficaciously if coddled by others; a person must be put outon one’s own, to learn self-reliance and self-discipline.79 Thismethod of teaching is itself moral, because this “tough love” willbetter those who are still learning, and thus is a form of love, notpunishment.80 Moreover, it is through this “sink or swim” methodthat the moral are ultimately differentiated from the immoral, be-cause those who have or who teach themselves moral attributes,such as self-reliance and self-discipline, will inevitably succeed.81

B. The Nurturant Parent

The difficulty in understanding the two moral worldviewsunder Lakoff’s theory is that they are often found in opposition onindividual issues, but they are not truly opposite in fact. Rather,they simply have different priorities.82 Yet through this reordering,the two worldviews have difficulty seeing how the other can bemoral. The second model, the Nurturant Parent, is one underwhich

[it] is assumed that the world is basically good. And, howeverdangerous and difficult the world may be at present, it can bemade better, and it is your responsibility to help make it better.Correspondingly, children are born good, and parents can makethem better, and it is their responsibility to do so. . .The parents’job is to be responsive to their children, nurture them, and raisetheir children to nurture others. Nurturance requires empathyand responsibility.83

Accordingly, the adherent to this model has a different set of pri-orities than the Strict Father.84 These persons believe in havingempathy for others and helping those in need.85 Also, under thismodel, one must be able to take care of others by taking care of

78 Id.79 Id.80 Id.81 LAGOFF, supra note 5, at 104-10582 See id. at 62-64.83 Rockridge Institute, The Progressive Worldview, http://www.rockridgeinstitute.org/

projects/strategic/nationasfamily/npworldview (last visited Dec. 3, 2005). For a more thoroughdiscussion of this model, see LAKOFF, supra note 5, at 108-140. R

84 LAKOFF, supra note 5, at 35. R85 Id.



one’s self, being happy and fulfilled, and nurturing social ties.86 Itis only within these priorities that the Moral Self-Interest makessense for this type.87

The Nurturant Parent uses the metaphor of Moral Accountingalso, but what is important to recognize is that these persons assigndifferent values to different results.88 Not realizing this is one ofthe phenomena that prevent the different models from understand-ing each other.

Foremost, the Nurturant Parent values empathy as moral.89

Only by understanding other people can one help them.90 Ratherthan force those under one’s authority to develop alone and forgetheir own path—as the Strict Father would do—the Nurturant Par-ent strives to nurture one’s children, and to help them along theirpath.91 Therefore, a common political argument from thisworldview would be that the government, who has authority overits citizens, should nurture such persons in order to make themstronger, not leave them to their own devices, which would be im-moral under the Nurturant Parent system.

The belief in nurturing individuals also extends to the belief insocial nurturance as moral.92 That is, instead of employing unadul-terated competition as a social device, one should strive to be dip-lomatic and work constantly to compromise, all the better tomaintain a civil community.93 Another moral trait, which the Nur-turant Parent finds as an end to itself, rather than the by-product ofmoral credit, is happiness.94 The Nurturant Parent believes that ifone is not happy, one cannot nurture others.95

The Nurturant Parent also believes in Moral Strength andMoral Boundaries, but unsurprisingly, these metaphors have verydifferent meanings under this model.96 Under this worldview, onewho is empathic and nurturing will accrue Moral Strength.97 Asfor Moral Boundaries, under the Nurturant Parent this concept is

86 Id.87 Id.88 Id. at 62-64.89 Id. at 114.90 Id.91 LAGOFF, supra note 5, at 116.92 Id. at 120.93 See id. at 120.94 Id. at 121.95 Id.96 See id. at 126, 133.97 Id. at 126.



in some senses both wider and narrower than under the Strict Fa-ther.98 The Boundary metaphor is wider in that a Nurturant Par-ent-type is less restrictive of the behavior of those under one’sauthority and does not restrict those persons to a single worldview.Instead, a Nurturant Parent encourages inquisitiveness and origi-nality, and only seeks to shelter those under one’s authority fromobvious harms, such as exposure to disease and violence.99 TheNurturant Parent metaphor of Moral Boundaries is narrower in thesense that this type believes competition should not be completelyopen, but regulated in order to “level the playing field” and to pre-vent the competition from becoming dangerous, such as throughpollution or faulty products, rather than waiting for the market tofix such problems, if at all.100

C. Synthesis and Variance

It is important to note that, according to Lakoff, althoughthese are root theories, they are not all-controlling. That is, a per-son who was raised in a Strict Father-type family may choose to bea Nurturant Parent himself, while yet unconsciously voting as aStrict Father politically, though running his business as a NurturantParent.101 Further, these are prototypes.102 They typify two start-ing points from which to discuss current moral thought. Amongthe standard worldviews, individuals move along linear scales,along pragmatic-idealistic dimensions, and with different moral fo-cuses: resulting in a multiplicity of end users of the same startingmodel.103

It is also important to point out that Lakoff believes that whilethe two models may move up and down a linear scale to demon-strate how strictly they follow their moral codes, the two codesthemselves are distinct.104 Thus, according to Lakoff, a person whomight be considered a “moderate” under either worldview wouldreally be at the end of one linear scale, which happened to be moretoward the other scale, rather than at a middle point between the

98 LAGOFF, supra note 5, at 133.99 See id.

100 See id.101 See id. at 16.102 See id. at 284-86.103 See id.104 See id. at 288-89.



two.105 This metaphor helps visualize the comprehension gap be-tween the two worldviews.

Generally, Lakoff finds that the pragmatic type person putsself-interest as a higher priority than the ideal, while an idealistdoes the opposite.106 The moral focus is the final major distinctionthat accounts for variance in the end results of people stemmingfrom the same worldview, and differentiates persons who believein the same morals, but put greater emphasis on one issue overanother.107 An example would be one who values race issues overenvironmental concerns, or vice versa.108

Overall, understanding where persons are coming from by un-derstanding their moral worldview enables one to create a linguis-tic framework that allows one to communicate properly with one’saudience.109 Only by appealing to listeners’ moral system can oneput terms in a context that they will understand.110 Once peopleunderstand each other, they can agree. Therefore, the knowledgeand ability to employ language to further this end is invaluable.

V. CREATING FRAMES

As long as one is honest, one can use just about any method tobuild the correct frame.111 But to do so, one must appropriatelyaccommodate different moral worldviews. Simply building a framearound the issue itself risks failure.112 Remember, facts are notenough; one must properly frame one’s arguments.113 The problemfor many speakers is that ideology and communication run intoeach other and confuse the issues.114 Morals, on the other hand,speak directly to people, even if only on a subconscious level.115

This is why one needs to build frames to communicate to people on

105 LAGOFF, supra note 5, at 288-89..106 Id. at 287-88.107 Id. at 288-89.108 Id.109 See, e.g., id. at 16-17.110 See NOW with Luntz, supra note 4. R111 Frontline: Luntz, supra note 2. R112 Id.113 Powell Lakoff Interview, supra note 14. R114 Frontline: Luntz, supra note 2. R115 See LAKOFF, supra note 5, at 13-15 R



levels they can understand and, indeed, already instinctivelyrecognize.116

A. Different Types of Frames

Even before drawing upon moral worldviews, one should rec-ognize that there are different types of frames. The three maintypes are: the re-frame, the focus frame, and the contrast frame.117

These distinctions are helpful in strategizing how to build a frame,as well as in seeing how frames can be turned against one.

The re-frame is where one alters the choice variables in orderto find a more favorable comparison.118 For example, if a business-person goes into a negotiation over a contract point, one may gointo the negotiation thinking that the only thing that matters iswhether one has to pay the other party. Yet, if this person decidesto pay the other party on the basis of whether one wants to dofuture business with this party or a third party, the issue has beenre-framed.

A change in focus frame is when one focuses on a differentportion of the same overall equation in order to make one’s deci-sion.119 Thus, if a prosecutor in a plea negotiation with a 20-year-old murder suspect tells him that if he pleads guilty, he’ll be out ofjail by forty and can still watch his family grow up, rather than re-maining in jail for life, the plea is more likely to be accepted than ifthe prosecutor simply said, “I’m going to put you in jail for twentyyears.”

Lastly, the contrast frame changes the contextual contrast inorder to make an issue sound more favorable than it would be in adifferent context.120 For example, if a speaker was trying to arguethe legality of the war in Iraq before the United Nations, there aremany issues that militate against the U.S. position.121 However, ifthe person extols the war, and then asks people if they are betteroff without Saddam Hussein in power, than in power, and finds ageneral consensus that this is so, the speaker has succeeded in sub-

116 NOW with Luntz, supra note 4. R117 Kelton Rhoads, Three Framed Victims, supra note 42.118 See id.119 See id.120 See id.121 See, e.g., Michael T. Wawrzycki, Comment, The Waning Power of Shared Sovereignty in

International Law: The Evolving Effect of U.S. Hegemony, 14 TUL. J. INT’L & COMP. L. 579(2006).



stituting one association for another, and thus appeals to a morefavored topic against which to contrast one’s original point.

None of these methods are dishonest; they simply ask peopleto evaluate things in a certain light. If people choose to agreeunder these conditions, the speaker cannot be faulted. Rather, asmart speaker might be faulted for not properly framing one’s lan-guage. Moreover, it is incumbent upon an intelligent listener torecognize when one has become subject to a new or shifting frame.

B. Applying Moral Values

Just as Lakoff’s analysis of cognitive thought is systematic andscientific, so are his procedures for building frames. Indeed,Lakoff has mapped out a generalized structure by which one couldbuild any frame. When faced with an important issue that needs tobe properly communicated, one should tackle it in the followingmanner.

First, one must pick out the relevant core values for the issue.122

To do this, one must understand the moral worldviews discussedabove. For the Strict Father, these would likely center around obe-dience, self-discipline, and self-reliance. For the Nurturant Parent,values such as empathy, nurturance, and responsibility would takeprecedence.

Second, one must write down how one’s position follows fromthese values.123 If one was trying to combat caps on malpracticesuits, one might explain that large awards serve merely to effectu-ate an efficient market, repair those damages, and get the wrongedperson on their feet until they can be self-reliant again: accountingfor the losses incurred through no fault of their own, but because ofthe doctor’s lack of self-discipline that enabled the error, thus caus-ing the damage. This argument maps the position on an issue to aseries of morals. Doing so makes the argument sensible and right.Also, one must remember to reframe–not simply to negate.124

Thus, arguing that caps do not protect the average person will fail.Negating frames does not supply a moral grounding; it only tellsthe listener that their morals are wrong.

122 Lakoff, supra note 16. R123 Id.124 Id.



Third, one must articulate the facts and their consequenceswithin this moral framing.125 To take the above example, propo-nents of these types of liability caps try to make it sound as if thevictims—and in particular, the lawyers—are getting somethingthey do not deserve by using terms like “frivolous lawsuits,” “litiga-tion lottery,” and “jackpot awards.”126 These words make the er-rant doctor suddenly the victim. Recognize how the above framewould invert this moral rather than simply negating it. That is, bykeeping the focus on the doctor’s mistakes, and providing that theperson who was immoral (the errant doctor) should take responsi-bility for one’s actions and make restitution to the moral person(the patient), who was injured through no fault of his or her own.127

This proposition frames the facts and consequences according to a“Moral Accounting,” thus grounding it in way that makes it justfeel right to people.128

Lastly, one must contextualize one’s viewpoint to the opposingviewpoint in this moral frame.129 Just as one has picked out one’score values, shown how his or her position follows from these val-ues, and articulated an argument for that position within this moralframing, one must do the same with the opposing viewpoint toshow why one’s morals dictate that the other side is wrong. Doingthis will leave that person with little choice but to choose thespeaker’s position over the other—doing any less would be im-moral. The above examples show how a Nurturant Parent-typewould communicate the issue in a way that a Strict Father-typecould understand.130 Rather than focusing on nurturing and socialequality—which the speaker may well believe in—the speakertalks about self-discipline, responsibility, and rules. By choosing alogos that evokes the opposing moral values, one is able to effec-tively communicate one’s point to others, which in turn allows oneto change outcomes.

125 Id.126 Id.127 Id.128 NOW with Luntz, supra note 4. R129 Lakoff, supra note 16. R130 Id.; see also NOW with Luntz, supra note 4. R



C. Applying and Diffusing Language

Following the procedures for applying values to a frameworkalso requires close attention to specific language. Establishing aconceptual framework based on values is only the beginning.

Most importantly, one must utilize language that matches one’sworldview.131 That is, the language one chooses to speak about anissue must derive directly from that moral system. In some cases,this includes choosing words that radiate around a specific trait,such as self-reliance or obedience. The example above of “litiga-tion lottery,” referring to caps on malpractice liability, is a goodexample. There, the traits of self-reliance and hard work equatingto “Moral Strength” work against one who would “get somethingfor nothing.” Yet when an opposing party reframes the issues, andappeals toward nurturing a person wronged by an immoral action,this issue looks very different.

Another part of this language choice involves posing loadedterms as neutral terms.132 That is, one uses a particular choice ofwords to invoke a specific meaning. If done correctly, the casuallistener will only hear a recitation of facts and come to the obviousconclusion, which is just what the speaker intended. A good exam-ple is the phrase “tax relief.”133 Consider Lakoff’s evaluation:

It got picked up by the newspapers as if it were a neutral term,which it is not. First, you have the frame for “relief.” For thereto be relief, there has to be an affliction, an afflicted party,somebody who administers the relief, and an act in which youare relieved of the affliction. The reliever is the hero, and any-body who tries to stop them is the bad guy intent on keeping theaffliction going. So, add “tax” to “relief” and you get a meta-phor that taxation is an affliction, and anybody against relievingthis affliction is a villain.134

Thus, the seemingly neutral choice of words is what in fact createsthe seemingly obvious choice. To paraphrase Luntz: this is not ma-nipulation, it is communication.135

131 See Bonnie Azab Powell, Framing the Issues: U.C. Berkeley Professor George Lakoff TellsHow Conservatives Use Language to Dominate Politics, U.C. BERKELEY NEWSCENTER, Oct. 27,2003, available at http://www.berkeley.edu/news/media/releases/2003/10/27_lakoff.shtml [herein-after Powell, Lakoff Interview 2].

132 Id.133 Id.134 Id.135 See Frontline: Luntz, supra note 2. R



Once you have the correct language, tailored to a moralframe, one must use the framework in advance preparations.136 Thelonger one has to build on a single frame, the more it will fit intolarger frames, and thus be able to contribute to a larger moralframework.137 A solitary, well-framed comment is a sound bite; aposition that fits into a moral worldview is a principle; and usedeffectively, it will sound to others as a sincere principle.138 Mostpersons, regardless of moral worldviews, respect integrity.139 To beeffective, the language must be repeated.140 It must be said again,and again, and again. As Luntz points out, the public has selectivehearing, so the only way to ensure the message gets through is torepeat it over and over and over.141

Further, if possible, it is crucial to build a supporting infra-structure for the frame. Once an issue has been framed in a certainway, reframing it “requires a rewiring of the brain.”142 Spreadingthe frame will take an investment of time, effort, and money.143

Creating these frames is not a spontaneous occurrence. Some-times, they result from the creation by experts such as Luntz andLakoff, neither of who come cheap. In other regards, framingcomes from executives or lawyers. Regardless, the language mustbe applied to advertising, press releases, and changes in companydocuments. This infrastructure is built up by diffusing the languagethrough the entire culture until its ubiquity all but seals the deal ifnot opposed by a contrary frame.

Once one has done the above four things, the speaker has cre-ated a moral truth.144 A frame done right appeals to the audience’smoral worldview; if is aligned with their morals, they must find thatposition as truth. Therefore, the listener is left with little choicebut to agree that this position is the moral position. The only thingthat could impede such a decision is a conflict of self-interest.However, individuals very often choose to uphold their moral sys-tem, even when it directly conflicts with their self-interest.145 This

136 Lakoff, supra note 16. R137 See id.138 See id.139 LAKOFF, supra note 5, at 91. R140 Frontline: Luntz, supra note 2. R141 See id.142 Lakoff, supra note 16. R143 Id.144 See NOW with Lakoff, supra note 24. R145 LAKOFF, supra note 5, at 162-69. R



demonstrates how persuasive moral worldviews can be when ap-plied to singular issues.

D. Advanced Framing—The Toolkit:

When one understands the basics of framing, one is able toemploy several specific tools with which to better construct frames.This collection of tools can be considered the framer’s “toolkit.”Each of these individual tools relies upon some form of metaphor.We have already seen how the moral system models themselves aremetaphors, as are many of the supporting concepts, such as “MoralStrength” and “Moral Boundaries.” The following tools buildupon the use of language to further refine the logos, to more effec-tively convey specific meanings.

1. The Mantra

Whatever language one selects for his or her frame, the logosmust be used as a mantra, repeated over and over. As discussedearlier, words can have various meanings, and persons can consentto these variations through different usages of the same word.146

However, what people want is clarity, and they have said this againand again.147 Dispute resolution is no different. A person wants tobe able to elucidate one’s point and make it clear to the other side,posing it as simple and reasonable.

Yet with so many points made in dispute resolution, eachparty has to worry about the other’s selective hearing.148 So whileit has been said already, it is worth repeating: once the languageframework has been built, it must be repeated over and over as amantra. As Frank Luntz puts it:

You say it again, and you say it again, and you say it again, andyou say it again, and you say it again, and then again and againand again and again, and about the time that you’re absolutelysick of saying it is about the time that your target audience hasheard it for the first time.149

Thus, one must form a fond attachment to one’s language and fullyembrace it. It must become more than a mere tool, but something

146 Lipshaw, supra note 9, at 823-24. R147 Frontline: Luntz, supra note 2. R148 See id.149 Id.



that instinctively leaps out of one’s mouth. Only then does it be-come more than a sound bite; it becomes a moral.150

Utilizing the language as a mantra is especially importantwhen one is using a contrast frame. That is, when one side of anissue is weak, but others are strong, the impression a person wantsto leave in another’s head is the stronger side, so that inevitably,the other person is forced to concede the argument. A litigationexample is the O.J. Simpson murder trial. Did people rememberthe blood in Simpson’s vehicle or his weak alibi? No. Theyremembered, “if the glove does not fit, you must acquit.” Theyremembered racism. The general consensus after the trial seemedto be that the ex-football player was indeed guilty of murder, yethe was acquitted. Why? Because his defense team focused on thestrong parts of his case and repeated those points over and overand over. And it worked.

2. Common Sense

One of the most powerful tools in framing is to frame a posi-tion as common sense. People all seem to agree that whatever iscommon sense must be right.151 Yet what exactly constitutes com-mon sense cannot be assumed as a given.152 Just like all other cul-tural “truths,” this rationale has a created value. What is commonsense depends on one’s moral structure.153

For example, were a Strict Father-type trying to argue againstfurther company expenditures, based on what the company couldactually afford, this executive might make the analogy to an ordi-nary person.154 The executive might say that this is like an overin-dulgent father trying to buy his kids everything they want, eventhough his credit cards were maxed out, and then looking to thestate to help him meet his finances. That would be wrong, the ex-ecutive would say. No, he would continue, no. The father mustlearn self-discipline and self-denial, only then will his children learnit, and only then will he be acting properly and instilling his chil-dren with the proper values. Likewise, the executive would argue,this company should not be engaging in expansive policies that

150 See Lakoff, supra note 16. R151 See LAKOFF, supra note 5, at 4. R152 Id.153 Id.154 This example is modified from George Lakoff’s analysis of a similar Washington Post edi-

torial. See id. at 5-7.



would require asking for a state dole. That is just common sense,he would conclude.

Heads would likely nod around the boardroom. Of course,many would think. This is common sense. It is a familiar meta-phor, one most would recognize.155 In this context, why shouldthey reject it? It is common sense not to live beyond one’s means.But wait a minute. Shouldn’t someone stand up and say that thewhole analogy is ridiculous?156 Why wouldn’t each one of thosepersons say in response, what is all this nonsense about indulgentfathers?157 The economics of a corporation and a small family arein no way alike. That is not common sense.

The problem is that the logical structure of the argument wasdictated by the metaphor, not the facts.158 Thus, combating thefacts alone would not help. However, one could easily reframe theentire argument.159 Another executive for this company mighthave said, actually, it is only common sense that we do expand ouroperations beyond our current economic capabilities. The statehas encouraged economic growth by offering record low loan ratesfor this specific type of project, and further, has offered generoustax incentives. Moreover, this executive would continue, if we arethe first one to do so, we will garner the good will of the public, aswell as be seen as a pioneer in the field. People will associate onlyus with this project, and thus our name recognition will skyrocket.If we don’t take advantage of these policies, our competitors will.So it is common sense that we do take this position.

It does not matter which position above is “right” or “wrong.”Indeed, there may be no right or wrong. The key is that commonsense can be a powerful tool in framing. Many people, if they arenot critical thinkers, will very often agree to such a framed proposi-tion with very little thought, as long as it aligns with their moralworldview. Conversely, any time a critical thinker hears the words“common sense,” one must immediately be ready to counter such aproposition, and to attack it as anything but, before it sinks in andis repeated as a common sensical mantra. For once something be-comes accepted as common sense, it is very hard to reverse such aproposition.

155 See id. at 6.156 See id. at 6-7.157 Id. at 7.158 Id. 159 Id.



A final thought on common sense is the role of this tool versusexpert testimony. Where experts would testify against one’s posi-tion, common sense becomes even more important in justifyingone’s position.160 For example, when President George Bush saidover and over that his environmental polices were “commonsense,” what did this imply? “It means experts are not needed.And who are the experts? They’re ecologists, environmentalists.This says, ‘Don’t listen to the experts. Just think about it yourself.And we’re going to tell you how to think about it.’”161 Thus, whereone needs to counter experts, common sense can be an especiallypowerful tool.

3. Naturalness

Another powerful tool, most often employed by the Strict Fa-ther-type, is to invoke the natural status of a thing. By stating that athing is “natural” one creates a difficult proposition to counter.This tool often relies upon the metaphor of Moral Order. That is,God is naturally more powerful than people, people are more pow-erful than animals and plants, and adults are more powerful thanchildren.162 This “natural” set of power relations confers a moralauthority.163 Moreover, it instills a moral responsibility on thosehigher up in the chain of authority, which, in part, involves protect-ing that “natural” order.164 Also, one must remember that in aworldview that uses a nation-as-family metaphor, the governmentbecomes the authority over the citizen, and the business over theconsumer; success dictates moral strength, and hence moral superi-ority.165 Thus, what a particular worldview casts as “natural” issomething fundamentally aligned with its morals—a thing assumednot to be a choice, but just the way things are. Moreover, merechoices are thus subordinated to the natural order.

In the following example of “naturalness,” recall how moralsystems impart different meanings to the same words. Thus, to aNurturant Parent-type, protection of the environment, or “nature,”may be very important, and indeed will likely be seen as a moral

160 See NOW with Lakoff, supra note 24. R161 Id.162 LAKOFF, supra note 5, at 81. As mentioned when discussing the Strict Father model, this R

“natural order” also includes the maxim that men are more powerful than women. Some StrictFather types follow this model (including women), some do not. See id.

163 Id.164 Id. at 81-82.165 Id. at 82.



cause.166 However, a Strict Father-type would see the environmentas “naturally” subordinated to humanity’s ambition; this allows un-bridled competition to prove Moral Strength, regardless of its ef-fect on the environment.167 Therefore, were these two parties to sitdown at a negotiation table without considering the other’sworldview, it would seem as if they were speaking different lan-guages. The Nurturant Parent-type would consider “nature” ashaving primacy over irresponsible industrialization, whereas theStrict Father-type would consider any regulation or limitation onone’s ability to succeed an immoral ordering of the moral hierar-chy, under which humans and their needs would inexplicably beplaced below that of “nature.” Thus, because the priorities of ad-herents to either worldview are different, what is “natural” to themwill also be different.

“Naturalness” can also arise in social issues, often relating tothe metaphor of Moral Boundaries. Strict Father-types do not con-done alternative moral systems, thus any who challenge the moralsystem are immoral, precisely because they would thus choose toact in “unnatural” ways.168 For example, under this metaphor, onewho is homosexual brings into question the traditional family andits claim to being the “natural” family model.169 That is, being gayis held out to be dangerous because it could lead people off of theestablished moral path. This is why those who are against “gayrights” do not even believe in gay rights; to them, it as if you aresaying there is a “right to be immoral.”170 Clearly, the biggest hur-dle people with this belief have is the proposition that homosexualsmay be genetically predisposed to their sexual orientation.171 Thisis why Strict Father-types continually choose words that indicatethe opposite, for example, “gay lifestyle,” or “deviant lifestyle”:these words imply that the subject has a choice, and thus frame theargument differently. A Nurturant Parent-type, on the other hand,is likely to find one’s genetic predisposition to be one’s “natural”status, and thus find that the belief that one should turn away fromthat nature repugnant. Once again, the point is not which side isright or not, or whether or not there even is a “right” side. Rather,it is important to understand how by using the term “natural” to

166 See id. at 210.167 See id. at 211.168 See id. at 81-82.169 LAGOFF, supra note 5, at 225-27.170 See id.171 Id.



appeal to one’s moral worldview, one can influence how othersview the issue.

One final point on this particular tool is that more so than withother aspects of framing, the longer one establishes and holds aview that a thing is “natural” or “unnatural,” the stronger theframe becomes. As one can imagine, to simply proclaim a thing is“natural” out of the blue has much less strength than if that beliefhas been held for centuries. Where one cannot remember the be-ginnings of the representation, however, the belief gains its ownjustification for being. The perfect example of this power is re-flected in the term “free market.” This is a metaphor so imbeddedin American culture it is hard to see.172 The metaphor goes back toAdam Smith, who said that the market was guided by an “invisiblehand,” by which he meant nature.173 Thus, under this metaphor,one who succeeds in this vacuum is the strongest, the best, andultimately, the most moral.174 Yet there are very good argumentsthat the market is anything but “natural.” As Lakoff says:

All markets are constructed. Think of the stock exchange. It hasrules. The WTO [World Trade Organization] has 900 pages ofregulations. The bond market has all kinds of regulations andcommissions to make sure those regulations carried out. Everymarket has rules. For example, corporations have a legal obliga-tion to maximize shareholder profit. That’s a construction of themarket.175

Yet the metaphor of the “free market” being “natural” is widelyheld in this country. Thus, one can see how powerful such createdtruths become over time.

However, in most instances, one cannot simply create an olderframe, and may be unable to utilize an older frame directly. None-theless, this indicates one should link their frame to an older struc-ture to lend its strength to one’s argument. For example, freedomof speech is a long-recognized right in this country; thus, to exercisesuch a fundamental right is only natural. Over time, political cam-paign donations have been viewed as a form of political speech. Atsome point, some lawyer made a persuasive argument that theright to expend sums of money equated to that longer held right ofspeech. It is possible to imagine a world where this was not so.

172 Powell, Lakoff Interview 2, supra note 131, at http://www.berkeley.edu/news/media/ Rreleases/2003/10/27_lakoff_p2.shtml.

173 Id.174 Id.175 Id.



Yet, by linking the two doctrines together, the latter was strength-ened by the former. This will necessarily be important when thesubject itself is brand new, such as with internet privacy or geneticengineering. Yet, if one can tie the new belief to an established“natural” order, one lends the legitimacy of an entire moralworldview to one’s argument.

4. Models and Demons

Very often, the rhetoric of a moral system will involve con-trasts and comparisons to model and demon archetypes, as definedby that worldview.176 The model citizen is the ideal prototype, thecitizen who best exemplifies that moral worldview.177 The demoncitizen is the anti-citizen who best typifies the antithesis of thisworldview.178

For those that follow the Strict Father model, the model citi-zen is one who (1) has and supports the values important to thismodel;179 (2) is self-reliant and self-disciplined; (3) upholds themoral system and believes in a system of punishments and rewards;(4) strives to protect others that are moral; and (5) supports thismoral order.180 One who best did all of this would likely bewealthy, a law-abiding, successful businessperson, who stronglysupported the military, a strict penal system, and was against gov-ernment regulation.181 A good example would be PresidentGeorge W. Bush. The Strict Father model’s demon would be onewho violated all of these conditions.182 An easy example is HillaryRodham Clinton.183 She opposes the strict moral order by de-manding equal rights for women, is a former anti-war protester, ispro-choice, is in favor of government regulation, who allegedlygained influence not on her own, but through her husband, and is asupporter of multicultural difference and understanding.184 Thus,it is easy to see why there is so much outcry against her; from theStrict Father point of view, she stands for all that one believes isimmoral.

176 LAKOFF, supra note 5, at 169. R177 Id.178 Id.179 79a See supra Part IV.A.180 Id.181 Id. at 169-170182 See id. at 170-71.183 Id. at 171.184 Id. at 171-72.



On the other hand, the Nurturant Parent’s model citizen is onewho is (1) empathic; (2) helps those who are disadvantaged; (3)protects those who need protection; (4) promotes and exemplifiesa fulfilled life; and (5) takes care of one’s own needs and happiness,so one can carry out the other four conditions.185 There is no onearchetype that fits this model, but rather many different types ful-fill these conditions, such as minority rights advocates, those devot-ing their lives to healing the elderly or poor, peace advocates, andteachers.186 Perhaps one should not be surprised that HillaryRodham Clinton would be a model citizen under this moral sys-tem.187 The demon then, is one who works against all of these prin-ciples.188 Equally unsurprising should be the fact that PresidentGeorge W. Bush is a demon to the Nurturant Parent-type.

In practice, acting from or toward a certain moral worldview,one would then argue one’s point in comparison or contrast to themodel or demon. For example, if a Strict Father was arguing thatdrilling in the Alaskan Arctic Refuge was important, one mightpoint to the model of other successful oil tycoons and ask whatwould have happened to their careers if they were hampered byequivalent restrictions? What would have happened to the entireAmerican economy? Conversely, the Nurturant Parent type mightmake an analogy to the Enron officers and point to the manipula-tion of energy resources, greed and corruption, and ask if the gov-ernment should allow other such persons to prosper while theaverage hard-working Americans pay for their predilections.

As with most framing principles, it does not matter which isthe “right” answer. Despite what the Strict Father-type would say,morals are relative. One must know one’s audience. One must un-derstand why his or her audience will respond how they will. Withthis knowledge, one must then construct a persuasive argument tai-lored to communicate to that moral worldview. Very likely, thiswill entail making analogies to model and demon citizens.

5. Titles

A specific form of a reframing189 that is of paramount impor-tance is controlling the titles of issues in conflict. How one namesan issue in dispute can control how that issue is considered; by con-

185 Id. at 173.186 Id.187 LAGOFF, supra note 5, at 173.188 Id. at 173-74.189 For more on reframing, see infra Subpart VI.A.



trolling the parties’ consideration of the issue, the outcome can bechanged.

An example of the power of titles can be seen in the policydisputes over “partial birth abortion.” This term is an invention ofabortion foes; the previous medical term was “intact dilation andextraction, or “D&X” for short.190 However, the more clinicalmedical term did not utilize a logos that would invoke morals.Therefore, the title of the debate was changed, and suddenly it be-came a fight over abortion, not D&X. The average person did notcare about medical minutia, but many would be willing to fightover a procedure that was tied to a specific moral framework.

Consider also the terms “freedom fighter” and “terrorist.”Would it be hard to believe that former British Colonists in theAmericas led “terrorist attacks” against their distant rulers? How-ever, Americans today read about “guerrilla warfare” and “innova-tion in battle.” Yet, these same linguistic niceties were notbestowed upon Vietnamese fighting for freedom in the 1970s, norIraqis doing the same against U.S. forces in the 2000s. To do sowould grant a status that the representation of war would not al-low. Although these contrasts are made in hindsight, one can im-agine trying to influence policy henceforth in dealing with aterrorist state (such as Iran is alleged to be) as opposed to workingwith those fighting for freedom (such as Kuwait during the 1990sGulf War), and the differences applying such titles would make tothe ultimate choices that were made by policymakers.

As with many of the examples in this Article, choosing a sideof any of these representations is not the point. Rather, the pointis that one can control how others perceive an issue before it iseven debated by changing the title of the thing fought over. More-over, items, such as “partial birth abortion,” or the so-called “deathtax,” can be posed as new battles, fought from the day of the titlechange, rather than as picking up an old fight midstream. Thus,doing so can reinvigorate a seemingly defeated campaign. In eitherregard, if choosing words to fit an overall apparatus is important,no words are more important than the titles of the subjects foughtover.

190 See The Pro-Choice Public Education Project, “The ‘Partial-Birth’ Abortion Ban of 2003,”http://www.protectchoice.org/pba.htm#_ftn3 (last visited Aug. 8, 2006); CENTER FOR REPRODUC-

TIVE RIGHTS, Q AND A: THE PARTIAL BIRTH ABORTION BAN ACT OF 2003, http://www.crlp.org/crt_pba_qanda.html (last visited Nov. 18, 2003); Susan A. Cohen & Rebekah Saul, The Cam-paign Against “Partial-Birth” Abortion: Status and Fallout, 1 THE GUTTMACHER REP. ON PUB.POL’Y (Dec. 1998), available at http://www.guttmacher.org/pubs/journals/gr010606.html.



6. Ending with a Rhetorical Question

Although less a nuance of language and more a trick of organ-ization of the logos, one can end an argument with a rhetoricalquestion to better persuade the listener.191 The idea is that oneends an argument with a rhetorical question to which there is ei-ther an obvious (positive) answer, or no answer.192 This diverts thelistener away from the weaker points of one’s argument.

A good example is the link between Al-Qaeda and Iraq.193

Most Americans believe there is a connection between the two,despite evidence to the contrary.194 Therefore, in speeches linkingAl-Qaeda and Iraq, Luntz has advised politicians to use this tech-nique.195 That is, when discussing the facts that some might finddubious, end with the simple question (here referring to terrorists),such as, “wouldn’t you rather catch them before they act?”196 Theobvious answer is yes.197 All of a sudden, the dubious listener isnow shaking one’s head in agreement; no one wants another 9/11they think, so they link this thought with the concept that it mayhave been a good idea to invade Iraq. In an instant, an amazingtransformation has taken place. The logos has transformed theopinion of the listener.

Is this a lie? No. Has the focus shifted? Yes. Did the listenerhave all the facts in front of them, and did they still choose toagree? Yes. So was it a fair technique? Yes. As Lakoff says,“[i]t’s an effective tactic. It’s true. It works that way. That’s howpeople do think.”198

E. Making the Meaning Clear

Above all, one must make sure that the intended meaning ofthe logos is the one that is conveyed. More than one law reviewarticle has been written on how parties may agree in a negotiationex ante, but disagree on the interpretation of the settlement ex

191 See NOW with Luntz, supra note 4. R192 See id.193 See id.194 Compare id., with Christopher Marquis, Powell Admits No Hard Proof in Linking Iraq to

A1 Qaeda, N.Y. TIMES, Jan. 9, 2004, at A8.195 See NOW with Luntz, supra note 4. R196 Id.197 Id.198 NOW with Lakoff, supra note 24. R



post.199 Those who do not engage in the type of cognitive commu-nication discussed here take this risk.200 This danger only high-lights the need to put extreme forethought into the meanings of thewords used, and ensuring that they are only used in the proper con-texts.201 Further, one must always combat improper uses of thechosen logos, or else it begins to lose its power. Indeed, if the in-frastructure and repetition do not convey this meaning, it may turnout that agreements reached were never based on those meanings,but on the meanings the other party may have applied from his orher own moral worldview.202

If all words had an “obvious ordinary meaning,” parties wouldnot dispute before the need to settle arose, or after an agreementwas reached.203 Litigation over the terms of a settlement entirelynegates the point of coming to an out-of-court agreement in thefirst place. Thus, this is one more reason that the use of the logosmust be simple, clear, and leave no dispute as to the meaning of thelanguage used.

VI. DEFENDING AGAINST FRAMES

In order to combat the use of frames against one’s interests,one must understand the concept of framing herein discussed. Todo this, it is imperative to understand the moral roots of theframeworks that are most often applied. Whether the person usingthe frames realizes it or not—for example, by using Luntz’s directpolling methods, and seeing only the end results of human opinion,not the cognitive reasons behind them—that frame will rely uponpeople’s deeply held moral values. Therefore, any efficacious re-sponse to a frame must also appeal to those values.

A. Reframing

When defending against frames, the first lesson one must learnis not to accept the opposing party’s use of frames.204 Nor should

199 See, e.g., Lipshaw, supra note 9, at 103. R200 Id.201 Id.202 See id.203 Id.204 Powell, Lakoff Interview, supra note 14. R



one simply try to negate another’s frame; this only reinforces theother frame.205 Remember that people do not usually register theword “not.”206 Thus, simply saying that another’s frame is “notcorrect” or “not true” will fail. Moreover, one who is caught in anopposing frame is linguistically trapped.207 To re-visit the exampleof “tax relief,” there is almost no way one can successfully arguethat citizens do not deserve tax relief. Almost any negative fram-ing of this situation makes that person sound like a villain.208 In-stead, one needs to reframe the subject. For example, to counterthe “tax relief” proposition, taxes need to be framed as a civic duty,one that pays for public works such as maintaining roads, keepingcities clean, and bolstering public safety and national defense.209

This makes it a responsibility—and thus moral—to pay taxes,rather than having them be some sort of unjust affliction (and thusimmoral).210 This example shows how an equally valid counter-ar-gument will only make sense in a framed context when explainedwith the correct language.

Second, one must understand that facts alone will not help.211

As Lakoff says, “[f]rames trump facts.”212 This maxim makes visi-ble the role of simplicity in the logos. Although the complexityand density of academic thought may well be the pinnacle ofhuman mental processes, they do not sell well at the negotiationtable. Were facts enough, philosophers would run the country. YetAmerica now has a President with a penchant for making thingsappear black and white, right and wrong, and who just “says it howit is.” But beyond simplicity, the words one uses will not be mean-ingful or powerful if not put into a moral context.213 While peopledo not always understand facts, they understand their own beliefs,their own gut reactions to a situation.

Luntz has complemented President Clinton on having exactlythis skill when he said: “Bill Clinton was the best context setter ofthe 20th century. He never gave you a full answer. He never toldyou what he was going to do, but he always told you why he was

205 Id.206 This point was discussed, supra, in Part II.C.207 Lakoff, supra note 16. R208 Powell, Lakoff Interview 2, supra note 131. R209 Lakoff, supra note 16. R210 Id.211 Powell, Lakoff Interview, supra note 14. R212 Id.213 See id.



going to do it.”214 In contrast, consider the 2000 U.S. presidentialelection. Al Gore largely relied upon facts and policies, and ex-pected that this alone would win the day.215 George W. Bush tookthe opposite tack, appealing to people’s moral view—yet at thesame time, he realized that Clinton was successful largely becauseof his empathy for the American people, and so adopted the term“compassionate conservative.”216 And it worked.217

The lesson to take from this example is that “frames trumpfacts.” When confronted with frames, one must do more than sim-ply employ facts in their defense: one must reframe. Moreover,when reframing an issue, the new frame must be grounded in amoral worldview.

B. Parsing Framed Language

When looking for opposing frames, there are several uses oflanguage that should tip one off that frames are being used. Also,one must be able to recognize the types of frames discussed earlierin order to be able to effectively combat them.218

First, watch for use of the term “versus.”219 Whenever onesees use of this term in an argument, one must ask if the two sub-jects posited on opposing sides represent the issues that the partywants to address.220 If not, one must reframe, utilizing the re-frametechnique, and employ language that contrasts the issues that areimportant to one’s moral system. It is also important to recognizethat parties will use this technique not only to shift the discoursetoward items of greatest interest, but to cover vulnerabilities.Thus, by asking what the posited binary opposition says in the con-text of the entire discourse, one should also be able to discern whatis not said. In this case, the re-frame technique can be utilized toexpose weakness by opposing one’s strongest arguments with theother party’s vulnerabilities.

214 NOW with Luntz, supra note 4. R215 LAKOFF, supra note 5, at 396-99. R216 Id.217 Id.218 See supra Part V.A.219 See Kelton Rhoads, Frame Defense, WORKING PSYCHOLOGY (1997), available at http://

www.workingpsychology.com/riskybeh.html.220 Id.



Second, one must beware of the “open-and-shut,” case.221 Acritical listener must ask if the situation is really that simple, thatclear, or if the issue has merely been framed that way.222 Re-fram-ing the situation may make it apparent that it is not so easy tojudge; that, rather, the opposing speaker has neglected to referenceother moral issues that would make the decision more difficult.This is yet another situation where attempting to negate the framewould be pointless. Reframing, however, and illuminating the dif-ficulties posed by the situation will make the other party’s argu-ment not only seem less appealing, but also slightly disingenuous.

Third, one must remember that each actor in a discourse is incharge of employing his or her own frames.223 Just as no one cancompel one to speak, nobody can compel what one might say.There are a myriad of such linguistic triggers that will warn offraming. It is incumbent upon each listener and speaker to knowwhat is important to his or her moral worldview, and to ensure thatthose issues are placed on the table in any conflict. In particular,this comes into play with contrast frames. When others take thefocus off of one’s important moral issues in order to sell their pointof view, the listener must immediately defend against this use offrames by reframing the discourse around their values.224 No oneelse can be responsible for this.

Fourth, one must recognize when a speaker stands to benefitfrom another’s compliance.225 Those in dispute resolution must al-ways be aware of what the parties’ agendas are. One cannot simplyassume that others happen to land on one side of an issue or an-other. The opposing party may side against their own business tofurther their self-interest, or look to help their business over an-other moral cause. There are an infinite number of such combina-tions. But no matter how or why each person makes the choicesthey do, they likely have a moral grounding, which brings this be-lief in alignment with all their other stands on issues.226 Be suspi-cious of the focus of other speakers, and be ready to counter withalternate frames.227

Lastly, beware of any literal or physical frames. When some-thing is transmitted through a medium, assume that there is an op-

221 Id.222 Id.223 Id.224 See id.225 Id.226 See LAKOFF, supra note 5, at 12-13. R227 Rhoads, Frame Defense, supra note 219. R



portunity for the subject to be framed.228 That is, argumentscoming from media outlets, news reports, blogs, and even vis a visrepresentations in popular culture, are tainted.229 Such frames arenot necessarily working against one’s moral viewpoint, but onemust be aware that there is no such thing as a neutral representa-tion of fact. Therefore, any viewer or reader is forced to alwayskeep a certain distanced perspective from such representations.

VII. USING THE LOGOS IN DISPUTE RESOLUTION

At this point, one should have an understanding of how lan-guage can have various meanings, and left to its own devices, willcause confusion. However, by harnessing the power of language,one can control the resultant discourse, regardless of the subjectmatter. Language, then, is most effective when it fits into a con-ceptual framework that relies upon a moral grounding supplied bya prototypical worldview. When employed in specific and pur-poseful contexts, the words acquire power. When used properly,this logos can change outcomes. Long used in the political realm,this communicative power has crept into the business world, and isnow entering the legal arena. Therefore, whether one successfullyemploys a linguistic apparatus will soon be determinative in thenegotiation, mediation, and arbitration contexts.

While framing is best suited toward larger policy issues, it iscapable of influencing any dispute resolution situation. This is es-pecially true since people have been shown in certain situations awillingness to support their moral worldview over their own self-interest.230 The following situations will show how framing can bepractically applied.

A. Recognizing Moral Systems

Arguably, understanding how to apply frames in politics iseasy. In almost every case, Republicans are Strict Father-types andDemocrats are Nurturant Parent-types.231 However, how onevotes is not necessarily how one will act in their family life or in

228 Id.229 See id.230 LAKOFF, supra note 5, at 162-69. R231 Id. at 11-13.



their business relations.232 Thus, if one is to use frames in disputeresolution, one must first come to understand the opposing parties.

Remember, framing does not suggest one should utilize fakearguments. To the contrary, if one is a Strict Father-type, he or sheshould build a set of frames that honestly reflect that moralworldview. However, one must recognize that if negotiating with aNurturant Parent-type, this person will not hear a Strict Father-type message unless that person uses words they can understand.Once again, a perfect example is George W. Bush’s 2000 U.S. pres-idential campaign. Bush fit the model citizen for Strict Father-types, however he still had to win over the moderate swing voters,many of whom were Nurturant Parent-types. To do this, Bush usedthe “compassionate conservative” frame,233 which convinced themore moderate Nurturant Parent-types that he too was empathic,that he cared about others, felt their pain, and would help them.234

Bush invoked non-interference in other nations’ affairs, and spokehumbly.235 In 2000, Bush may have meant these things. He justchose different words to express his views. The Strict Father-typesin the populace were not fooled by the word changes. They knewwho he was and what he represented.236 And it worked.

Similarly, one entering dispute resolution must be able toidentify the moral worldview of the opposing party or parties. Insome cases, this will be easy. For example, when a multi-billiondollar oil company is negotiating with environmental interestgroups, it is a pretty safe bet that the environmentalists are Nur-turant Parent types.237 Or if one is the head of a teacher’s union,negotiating with a superintendent who is renowned for her rigor-ous attention to authority hierarchies, believes strongly in disci-pline, and in curtailing dissident students, it is likely that she is aStrict Father-type.

To make this determination, research is crucial. Just as oneprepares for a case by learning the facts and the law, a party indispute resolution must know with whom he or she is talking. Totake an extreme example, if you knew the other party spoke onlyGreek, would you go into the meeting with only English speakers,or might you come with a translator?238 Frames are different, but

232 Id. at 16.233 Id. at 396-99.234 Id. at 396.235 Id. at 396-97.236 Id. at 397.237 LAGOFF, supra note 5, at 210-211.238 See NOW with Luntz, supra note 4. R



only so much so. The two moral worldviews speak the same wordsbut attribute wholly different meanings and priorities to them.This is why these groups so often see the same set of facts, use thesame words, and are incredulous when the other side reaches thebinary opposite conclusion.239

It is possible that the opposing party in a dispute resolutionmay be well known. This makes the analysis easier. Few woulddoubt that while negotiating a plea bargain with Rush Limbaughover illegal pain medication prescriptions they would be dealingwith anything other than a Strict Father-type. Alternatively, theperson may be identified with a group to which there is an easyidentification. That is, if you were negotiating with a member ofthe Sierra Club, you would likely be dealing with a Nurturant Par-ent-type.

However, this kind of publicity is not always available. More-over, it is possible that the person is a different type than his or herorganization. Thus, if possible, it is important to feel out the otherparties in dispute resolution. One should engage the other side incasual talk about their families, current affairs, or anything elsethat might expose their moral worldview.

In particular, one must pay close attention to the words otherschoose. Words like “obedience,” “self-discipline,” “self-reliance,”and “traditional values” should signal to the listener that thespeaker is a Strict Father-type. In contrast, talking about “empa-thy,” “nurturing,” “helping others get on their feet,” or “searchingfor happiness” (as an end to itself) signal a Nurturant Parent-type.Conversely, should the other party disparage any of these attrib-utes, that would also be a clue. Thus, if the dispute resolution pro-cess is meant to take place over several sessions, it would be wiseto dedicate a person to listen to the other parties’ language andhow they use it: listening for moral tells and other giveaways. Thisperson need not be an expensive lawyer; he or she could be anintern, a lower level employee, anyone. The key is simply to un-derstand the principles of framing and moral worldviews and knowhow to recognize such words. Then, in between sessions, languagecould be crafted to better communicate to the other parties’ moralworldview.

The last strategy notwithstanding, the logos is something bestconstructed ahead of time. If one cannot discern which worldviewtheir opponent adheres to prior to the dispute resolution, one must

239 See LAKOFF, supra note 5, at 16. R



have language prepared for both moral systems. In such a situa-tion, one would have to use the language that instinctively feelsbest, and if the message seems to fall on deaf ears, switch modellanguage. Likely, one of the two will catch the other party’sattention.

B. The Use of Frames in Negotiation

When one understands how to use language, morals, andframing, a complex linguistic apparatus can be built around one’spoint of view. Then, once a person knows to which worldview theopposing parties in a negotiation adheres, one can craft language tocommunicate to them effectively.

A basic example is where an investor, looking to open a newfactory must negotiate zoning rights with the local government, aswell as come to an agreement with an environmental group. Theinvestor would first prepare an environmental plan. Were the in-vestor part of a corporation known to have had detrimental effectson the environment this would be more difficult because its reputa-tion would work against him.240 Regardless, for this example, let ussay that the investor is a Strict Father-type.

To be successful, the investor must be proactive. He and histeam must craft language that will speak to a nurturer (as the envi-ronmentalists will almost surely be Nurturant Parent-types). Theyhave to build language that goes toward Nurturant Parent morals:empathy, nurturing, and caring for others. Even if the investorwants few restrictions on his business, he must craft language thatshows he understands where the environmentalists are comingfrom and honestly resonates with them.241 To simply rely uponStrict Father morals of competition and self-discipline would be amistake. A Nurturant Parent-type listener would not accept this.Rather, the investor needs to say, “hey, I too care about the envi-ronment. We spend millions of dollars each year working to makeour plants safer and to protect the environment. Does this hurt ourcompany fiscally? Sure it does. But it’s the right thing to do. Wehave a responsibility to the world around us.” Perhaps the investoris simply talking about the millions of dollars it takes to complywith standard governmental regulations, which are only the bareminimum. But this makes the investor’s argument no less true or

240 See Frontline: Luntz, supra note 2. R241 See NOW with Luntz, supra note 4. R



persuasive. He has used language that appeals to the environ-mentalist’s morals. He will then need to repeat this languagethroughout the negotiation.

Next, the investor turns in his preparations to the local govern-ment officials, who in this hypothetical are all Republicans. Here,his job is easier. These parties already speak the same language.Understanding the political realities better than anyone, the gov-ernment officials will understand the investor’s language to the en-vironmentalists. So the investor nonetheless says to thegovernment official, “let’s all work out a deal with the environmen-talists. You can see our company has the discipline to follow therules and still be competitive and succeed. Moreover, our successwill translate into more jobs and tax revenue for you.” This is aneasy sell. While the details of the deal would still need to be ham-mered out, the local government would be on board. In both cases,with both parties, the investor simply needed to know how tospeak their language.

Framing can even work in zero-sum type negotiations. Saytwo parties are fighting over a contractual dispute. Company Asays that it sent a termination letter within the contractual dead-line. Company B says it never received any such communicationand therefore the other company has wrongfully terminated thecontract. How can framing work in this type of scenario? Whileframing may have less room to maneuver in this situation, it is cer-tainly still applicable.

More so than in most scenarios, it is imperative to understandthe people with whom one is bargaining in zero-sum negotiations.Using the example above, if Company B’s negotiator realizes thatthe person negotiating for Company A is a Strict Father-type, herbest bet is to break the situation down into terms they both under-stand. “Look,” she will say. “This is a big contract, and you reliedupon one flimsy letter. If your people were more disciplined, theywould have also sent faxes and emails, and maybe by phone too.Did you really do this, or are your people just realizing maybe itwasn’t as profitable as they thought, and are trying to get out of it toolate? That sounds like getting something for free to me. Listen, thecontract lays down rules, and you guys broke the rules. Even if theletter got lost in the mail somewhere, surely you can’t blame us for it.We never touched it. Take responsibility for your own actions.”Now it may be that the opposing counsel will simply say he willtake his chances in court. But perhaps these comments will reso-nate with him. Perhaps his moral code will force him to agree with



this assessment. If so, Company A’s negotiator may very wellchoose to put his moral worldview over his—or his company’s—self-interest.

Conversely, Company A’s counsel would not be well served toquote the opposing counsel the numbers and costs of litigation ver-sus the numbers and costs of negotiation. It may work, but it willlikely not be enough. If Company B’s counsel is also a Strict Fa-ther-type, these numbers may not be determinative, even if theyshow that Company B is better off settling. This is because Com-pany B believes it never received the letter. Thus, settling wouldbe giving in, a weakness. Compromising when one believes theyare morally correct is an immoral action to a Strict Father-type. Soonce again, although settling might be in Company B’s best inter-ests, it may not settle if it goes against the moral code of its deci-sion-makers.

This is not to say that framing will necessarily guarantee theoptimum outcome in any given negotiation. But to take the aboveexample, perhaps Company A will be willing to modify the termsor give terms more favorable than it would have been if both sidesjust yelled at each other. This is possible because Company Bframed the argument to focus on Company A’s comparative moralweakness and used language to make that clear.

C. Use of Frames in Mediation

For the most part, use of frames in mediation is the same as itwould be with negotiation. However, there is a crucial difference.Now there is an impartial third party involved. Nonetheless, par-ties to a mediation must invoke the logos just as vigorously withthe mediator as they do with the other parties. The key, however,is to tailor the language to communicate with the other party, notthe mediator. Thus, even if the logos does not resonate with themediator, a party will want to choose his or her language carefully,repeat it often, and insist on only that language, so that when themediator goes to speak with the other side, he conveys the moralmessage to the opposing party.

The idea is that when the other party hears the logos from aneutral third party, it will seem that much more valid. Indeed, be-cause of this, it will have the illusion of greater authenticity. Thus,in this situation, repetition is the most important tool. The chosenlanguage must be the language of the mediation.



Imagine again the example of “tax relief.” When the mediatorpulls aside the party fighting the tax policy, imagine the mediatorsitting down and asking that party, “so what do you have against taxrelief?” That party is trapped.242 Instead of articulating his or herarguments well, the party is necessarily on the defensive about whythe other party’s arguments are bad. And as already discussed,simply negating a frame does not work.

Even when all the parties come back into the same room, allthe points at issue must be articulated from the same logos that onestarted with. Repeating that language mantra-like will only workto ensure that frame’s efficacy.

A unique problem in mediation arises when the mediator rec-ognizes that one party has used the logos to trap the other party.The mediator is not there to choose sides, and should be fair—thatis, not interfere with one side’s advantage over the other. How-ever, this person may try to phrase questions differently to theother party, especially when isolated with them. This is hard todetect and attribute to the mediator, but the shift in languageshould be noticeable. The best response is first to insist on one’schosen logos. Should this fail because the other party disputes theaccuracy of the term, or feels it is biased, agree to disagree andutilize the remaining words of the logos. For example, if the per-son objects to the term “tax relief,” say “call it what you will, butwe still object to any taxation which penalizes the best Ameri-cans.”243 This way, while abandoning the titular logos, one keepsthe overall representation of the discourse intact. Repeat this pro-cess as many times as is necessary. The mediator can only do somuch to deflect; at some point, he or she will simply have to ac-knowledge that the one side is just not getting it.

On the off chance that the mediator continually insists on re-framing the discourse, one should object and insist on a new, unbi-ased mediator (if the terms of the mediation allow it). At the veryleast, one should threaten to do so. However, this should only bedone as a last resort.

This problem demonstrates why it is important to build a suffi-cient infrastructure beforehand. One wants the mediator and theother parties to be comfortable with the chosen language. Indeed,they should not even perceive that there is anything to resist. Yet,even if they object to specific terms, one should be ready to employother words that represent one’s moral worldview. Individual

242 See Lakoff, supra note 16. R243 See LAKOFF, supra note 5, at 189. R



words are sound bites; language that supports an entire dispositif ofmoral integrity cannot so easily be thrown away.

D. The Use of Frames in Arbitration

Although the consequences of arbitration are different thanthose in negotiation, the application of frames is similar; it is onlythe focus that shifts. Here, unlike with mediation, the goal is toinfluence the third party. This can be harder because one mayknow less about this person. If the arbitrator is a judge, study hisor her decisions; their preferences should be clear. If the arbitratoris a lawyer, try and learn his or her reputation. If they are someother form of expert in the field, their reputation may be equallyknowable. Knowing the arbitrator lets one know what type of lan-guage to employ to effectively communicate one’s position.

Regardless, one needs to repeat, repeat, and repeat the frameschosen to convey the argument. Remember that one should al-ways argue from one’s own moral worldview; one simply uses thelanguage of other worldviews to convey these points if facing anopposing worldview—it is only translation. In arbitration, morethan ever, one’s sincerity will be crucial. If an arbitrator thinks aparty is simply giving its side of the story, one has no advantage.The goal is to convince the arbitrator that one’s side is the moralside. It is little secret that on occasion, judges will stretch the lawin order to achieve what they feel is a just result.244 Arbitrators areno different. Thus, one must use frames to convince the arbitratorthat the “fair” or “just” ruling is that which aligns with one’sargument.

The preparation for an arbitration, in terms of framing, is simi-lar to that during litigation. But if done correctly, it will be muchmore effective than simply “framing the case,” which does notcombat the inherent bias of the adversarial system. In sum, onemust make sure that all the facts of the case fit into the properframes. Further, when all the positions on the issue align withone’s moral system, it will make that much more sense, and helpconvince the arbitrator to side with that position—because it is theright thing to do.

244 See, e.g., Major League Baseball Properties, Inc. v. Sed Non Olet Denarius, Ltd., 817 F.Supp. 1103 (S.D.N.Y. 1993) (detailing the judge’s somewhat suspect intellectual property deci-sion in favor of a Brooklyn sports bar against the Los Angeles Dodgers, that appeared, in part,to rely on the local “ill will” the Dodgers had garnered by uprooting the team.)



VIII. CONCLUSION

Any lawyer knows that words and language are important.Therefore, lawyers do their client a disservice when not using thosetools to their fullest extent. To be most effective, one must use alinguistic apparatus as “a mechanism of power reduced to its idealform.”245 Control of this logos controls outcomes. In its idealform, language is based on morals and reinforced through an intri-cate set of frames, which equally align with these values, and areinvisible in their application. This conceptual framework can bedeterminative in dispute resolution. Therefore, by establishing,employing, and managing the logos one maximizes the ability toresolve conflicts in one’s favor.

245 FOUCAULT, supra note 12, at 169. R

language, morals, and conceptual ...two men, frank luntz and george lakoff, have stood at the...

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