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Bar News - October 21, 2015

Alternative Dispute Resolution: The Truth? You Can’t Settle the Truth


Mediation is no place to go looking for the truth.

But isn’t a search for the truth what a civil case is all about? Well, sometimes it is – and sometimes it isn’t.

Truth is the goal of a jury trial. In a personal injury case, for example, the 12 decision-makers are supposed to decide fault and damages. Usually they can, mainly because none has a stake in the outcome.

But truth is not the goal of a mediation. If even one of the decision-makers thinks it is, the mediation will likely fail. Why? Because here all the decision-makers – the parties – are affected by the outcome. Experience teaches that when stakeholders try to impose their version of “truth” on their adversaries, all hell breaks loose. Just look at what is happening in the Middle East.

The person most likely to come to a mediation thinking it’s about truth is the amateur, the plaintiff. Plaintiffs often are sure they know the truth: what happened to them, who’s at fault, and how to fix it. But if their goal is to get the adjuster to agree, they almost always will be bitterly disappointed. Since the adjuster doesn’t agree with what they know is true, what’s the reasonable conclusion? The adjuster is calling them a liar. Who will come to agreement with someone who is calling them a liar?

If plaintiffs need to understand that mediation is not a search for truth, then what is it? I think the goal is to reach agreement on a perception: what are 12 jurors most likely to perceive about the case? If the issue is framed this way, things calm down a lot. It’s no longer a fight about what is true. It’s a discussion about what 12 imaginary people will perceive.

In the end, a personal injury settlement negotiation is not a search for truth but something much less inspiring: the sale of a commodity – the plaintiff’s signature on a release. The advisors to the commodities traders – the lawyers – predict what will happen later if the commodity is not sold now. Their predictions almost always differ but, when both are experienced professionals, they usually fall within a reasonable range. The owner’s advisor, of course, values it on the high end of the range; the buyer’s advisor, on the low end. That’s human nature.

When the both predictions are within the reasonable range, settlement is quite likely.

Unfortunately, some plaintiffs do not want to hear that usually there are good reasons for such differences of opinion. To them, their view of their case is so obviously true that it will surely be seconded by any jury. If the mediator, rather than their advisor, is the first person to tell them otherwise, the mediation process is in trouble. Bad news takes time to sink in. A big part of the plaintiff lawyer’s job, before mediation, is to deliver that news thoroughly.

The defense lawyer has a job, too. Sometimes adjusters – usually the inexperienced ones – also think they are in the truth business. “A little rear-ender like that!” one might exclaim. “All that plaintiff needed was six to eight weeks of treatment! You know it and I know it!” Defense counsel might agree, but so what? Only one opinion matters: what a jury would think. Some adjusters need to be reminded of that.

The opening session is the defense lawyer’s best opportunity to move the discussion away from a battle about “the truth.” Most defense lawyers I have seen are pretty good at this. They don’t argue with the plaintiff about what’s true, but focus on their experiences with juries, and what that says about how jurors may see this case. This depersonalizes the conversation; the focus is on what the jury will think, not what the defense lawyer thinks. This creates an atmosphere much more conducive to compromise and settlement.

We lawyers live in a gray world. Truth is seldom sought and even rarer to find; perceptions rule. If we insist that things are either black or white, compromise is all but impossible.

For a mediation to be successful, the parties must accept the gray world, where absolute truth is not found but things can get done. Often parties – particularly the plaintiffs – are reluctant to enter this world; this is completely understandable. But most people will give up on insisting that things be either black or white when they realize that the alternative is to hand over their fate to 12 strangers. That option should be enough to scare almost anybody – and it usually does. Once the parties accept a world of gray, they may find that green things can happen.

Blake Sutton

Blake Sutton is a civil trial lawyer, mediator and arbitrator.

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