The Use of Discourse Maps to Teach Contract Negotiation Communicative Practices

Abstract

This article reports on the use of discourse maps in conjunction with genre and discourse analysis to help teach communicative practices for contract negotiation. Using one map as a baseline to understand the intertextual process of negotiating a contract in communication with business clients and counterpart lawyers, other maps can zoom in and examine the discursive features of email genres, cover letters, and different versions of the contract under negotiation. The type of discourse maps developed in this study can be utilized for task-based writing materials and role-play activities that facilitate the authentic experience of negotiating a business deal.

Many business activities are formalized as terms and conditions of enforceable contracts through a communicative process of negotiation to reach an agreement. The negotiation of each contract can be complex and protracted over an extended period of time due to the necessity for multiple interactions between the contracting parties and their professional representatives (Klee, 2003), involving the use of a range of discourse types and strategies (Cheng, 2009; Firth, 2014; Putnam & Jones, 1982; Salmi-Tolonen, 2008; Townley, 2019; Townley & Jones, 2016). Lawyers and business professionals have traditionally learned how to negotiate contracts as an experiential or implicit sense of what is appropriate, gained through working closely with other colleagues. A significant implication for business and law graduates is that while they may acquire a level of familiarity with key contractual genres from formal education, they are not always able to produce situation-specific examples of such genres and remain relatively unaware of the discursive realities of situated practice in the workplace (Bhatia, 2004, 2008). As a theoretical concept, genre refers to a text type that can be defined by the rhetorical structures and lexicogrammatical properties that are used to achieve specific discourse objectives (Martin, 1997; Swales, 1990, 2004).

These discursive challenges are compounded by the fact that legalese, the medium of legal English used for drafting contractual terms and conditions, is commonly regarded, pejoratively, as a technical jargon that is difficult to understand or use. This association with jargon is due to the technical or conceptual nature of legal practice, which has tended over the years to reclassify a register of English used for “highly technical, specialized legal processes and relations” (Goodrich, 1986, p. 151). Following Bhatia (1993), Hafner (2014) notes that legal writing customarily requires the use of “clear, precise and unambiguous language, while at the same time constructing a document that anticipates an unlimited number of real-world scenarios to which the rules might apply” (p. 354). Business professionals must also be proficient in the use of legalese to participate in contract negotiation activities.

Contracts are a type of normative legal genre with the primary purpose to formulate everyday language and understandings in terms that are objective and rule based. Lawyers often rely on formal and archaic expressions when drafting contracts, similar to the language used for legislative texts. Tiersma (1999) argues that the formal and ritualistic language of contracts can operate as a signal to the parties that the contractual terms have significant consequences. With English used as the lingua franca of international commercial law practice, legalese also operates as a type of performative style of communication in English (Tiersma, 1999) that all discourse participants with business law expertise can use to negotiate contracts, regardless of their cultural or professional backgrounds.

Linguistic-based research provides new possibilities for designing pedagogical materials that develop the full range of communicative competences needed to negotiate commercial contracts in professional practice. Communicative competence is defined as a “marker of expert behaviour in a wide range of professional activities” (Candlin, 1999), which can be a key differentiator for successfully negotiated outcomes. Competence involves not only mastery of the linguistic system to “construct and interpret contextually appropriate texts” (Bhatia, 2004, p. 141) but also the ability to use language effectively in conjunction with social practices and social identities in ways that others in the professional community will recognize (Curl & Drew, 2008). In business contexts, Ulijn et al. (2004) argue that negotiation competence depends on “the degree to which a participant knows the diverse aspects of the professional setting” (p. 42) and that it is recommended to examine the real-life, institutionalized discursive interactions of the target context to develop communicative competences through experiential learning (Van Praet, 2016). This can involve the use of role plays to simulate the real-world business situations where students actively exploit the target language and discursive practices in professional roles (Dressen-Hammouda, 2003; Phillips & Clifton, 2007; Ulijn et al., 2004; Van Praet, 2016).

This study was granted access to authentic discourse materials pertaining to the negotiation of a distributorship agreement for the marketing and distribution of U.K.-made goods in Turkey by one of the participating law firms in Istanbul. In accordance with research ethics requirements, the nature and purpose of this research were explained to the participants in order to obtain their written consent on approved ethics consent forms. The authentic materials were used to design a series of discourse maps to help learners understand and develop communicative competencies for this important area of business law activity. Discourse maps can help learners visualize and navigate through the chain of intertextual discursive events and interactional role practices that are typically involved in a contract negotiation process. The maps can also clearly demonstrate the number of different kinds of texts customarily involved in contract negotiation, including emails, cover letters, and different versions of the contract under negotiation. Genre and discourse analysis can then be applied to authentic data embodied within the maps to understand the communicative practices and interactional role behaviors of the professionals involved in negotiation activities. In doing so, this article combines theoretical knowledge of contract negotiation communicative practices with effective pedagogical materials that help prepare learners for the discourse realities of commercial contract negotiation.

In terms of the overall structure of this article, I first review the literature about the importance of using authentic materials from the target context when developing communication pedagogical materials and the theoretical concepts associated with the use of discourse maps, such as intertextuality, genre, and discourse analysis. I then introduce the contract negotiation data materials, discourse participants, and analytical methodology used in this study. The next section presents a discussion of the analytical findings for both the macro and micro perspectives of the negotiation’s discourse maps. The final section concludes with a discussion of the efficacy of using discourse maps that embed genre and discourse analyses for teaching complex negotiation communication practices.

This article was written by Anthony Townley and first published in March 2021.

The original article citation:

Townley, A. (2021). The Use of Discourse Maps to Teach Contract Negotiation Communicative Practices. Business and Professional Communication Quarterly. https://doi.org/10.1177/2329490621994217