Comparative Study on Rhetoric Skills in Courts and Negotiation-Japan and Britain

1.在日本法院观察到，法官在听取律师就相关法律问题激烈交换意见后宣布最终决定的情况是不寻常的，因为他们在民事纠纷中根据当事人律师提交的文件进行判决，在刑事案件中，他们似乎没有面临向大多数已认罪的被告作出决定的困难。在这方面，法庭上的修辞技巧对普通执业律师来说并不重要。在家事法庭调解的案例中，对于家事法庭调解员来说，在理清当事人之间的困难关系时，修辞技巧似乎更为关键。家事法院调解的核心原则是当事人自主决定。因此，家事法庭调解员的主要作用是支持当事人了解他们的情况，谈论他们的问题，帮助他们达成协议。为了达到这样的目的，调解人往往根据自己长期的调解经验，运用自己的修辞技巧。在英国，诉讼中修辞技巧的发展反映了律师们三百多年来为赢得重罪审判而做出的努力。特别是在19世纪，他们在法庭上雄辩地恳求陪审员同情他们的委托人。然而，律师们发现，陪审员--普通人--并不熟悉雄辩的言辞，然后他们倾向于在诉讼中使用通俗易懂的语言。这种倾向似乎在律师中广泛传播，特别是当他们从事ADR环境时，在这种环境中，当事人--普通人--依靠自己作为普通人的技能来处理他们的纠纷。

1. It is unusual to observe in Japanese courts that judges declare final decisions after hearing fierce exchange of statements by the lawyers on relevant legal issues, since they make judgment in civil disputes considering the documents submitted by the parties' lawyers and in criminal cas es they seem not to face difficulties to make decision to the defendants most of who have admitted guilty. In this respect, rhetoric skills in the court are not regarded important to ordinary practicing lawyers.2. In the case of family court mediation, rhetoric skills seem to be more crucial for the family court mediator for sorting out difficult relationships of the parties. The core principle of family court mediation is 'self-decision' by the parties. Therefore, the main role of family court mediators is to support the parties to understand their situation, to talk about their issues, and to help them to reach an agreement. In order to achieve such objects, the mediators often use their own rhetoric skills based on their long experience as a mediator.3. In Britain, developments in rhetoric skills in litigations reflect the efforts by the lawyers for wining their cases of felony trials for more than three hundred years. In the nineteenth century, in particular, they pleaded eloquently in the court room for attracting the jurors' sympathy to their clients. The lawyers, however, found that eloquent rhetoric was not familiar to jurors - ordinary people, and then they tended to use plain and current language in litigation. Such tendency seems to be wide spread among lawyers, in particular when they commit ADR settings in which the parties - lay people - deal with their dispute by their own skills as an ordinary people.