Co-Constructing Legal Formulations in Family Mediation

We focus on the mediator’s profession in family justice in Brazil, with a specific attention to the practice of formulation. It was originally described by Garfinkel & Sacks (1970:171) as the practice of “saying-in-so-many-words what we are doing (...)”. In the ethnomethodological tradition it is a method used by participants in interaction to create intelligibility and solve problems of indexicality in the here and now of encounters.

In professional discourse, however, we can associate it with regular performances of participants, i.e., with their roles in an institution. We have selected moments when legal issues pop up in interaction via formulations. Based on a corpus of real interactional data of three mediation cases, amounting to a total of 6 pre-mediation interviews and 12 mediation sessions (approximately 14 hours of talk), we undertook a qualitative interpretative study, within the theoretical framework of Interaction Analysis. During the first phase of data analysis we counted on a collaborative work of the mediator in joint data analysis.

The study reveals that legal formulations occur when the mediator explains her own practice to participants, trying to make them adhere to the ongoing work, when she furnishes legal official explanations regarding rights and duties of parents, in a consultative mode, among other uses. Particularly, one type of sequence called out our attention. A wrong initial legal understanding which emerged in a utterance of one of the parties is changed by the mediator via questions and answers, which co-construct with parties a new legal point of view, making them collaboratively change his/her mind. Legal formulations are therefore associated with the more global issue of access to knowledge and (in)equalities, as the main conference theme indicate.