One of the most common obstacles to the resolution of disputes is the natural tendency of the parties, and/or their respective counsel, to each view the factual or legal issues giving rise to the dispute as having only one possible interpretation – an interpretation, of course, that is most favorable to their position. This “black and white” approach to the underlying dispute often renders compromise impossible.
While there are undoubtedly occasions when the facts or law are indeed either “black” or “white,” most disputes actually come in shades of gray. The ability and willingness to see disputes in shades of gray is usually a prerequisite to resolution. If one thinks of “black” and “white” as opposite extremes on the continuum of compromise, it becomes readily apparent that resolution is not possible until all parties are willing to move into the gray area. Once one sees the dispute in shades of gray, it becomes much easier to move from one shade of gray to another that may be a bit closer to the opposing party’s point of view.
The capacity of counsel to see a dispute in shades of gray – and, more importantly, to help his or her client to do so – generally makes for more effective advocacy in the mediation process. The ability to persuade one’s own client to view the dispute from another perspective is often the catalyst needed to move the process from impasse toward compromise.
Equally important, a willingness to acknowledge – to the mediator, to opposing counsel and to any opposing parties – that a dispute is not necessarily “black” or “white” and that there may be potential merit in some of the positions and arguments advanced on behalf of an opposing party is not a sign of weakness, but rather lends credibility to one’s own advocacy, which can be an invaluable asset if a line in the sand later has to be drawn.
As always, it would be my pleasure to assist you and your clients in the dispute resolution process. Please don’t hesitate to contact me if I can be of service.
Best regards,
Floyd J. Siegal
fjs@fjsmediation.com