Much of a mediator’s focus is devoted to uncovering the truth. Not the truth about the events giving rise to the dispute because “truth” — at least in the context of litigation — is whatever a jury, judge or arbitrator ultimately determines it to be. Perhaps German philosopher Friedrich Nietzsche was referring to litigation when he said: “there are no facts, only interpretations.”

The truth that mediators seek to uncover is the truth about the parties’ positions and interests. Mediators probe to learn what it will REALLY take to reach a resolution because when we know the truth about the parties’ goals and expectations, we are better equipped to propose negotiating strategies and offer other suggestions that might lead to a resolution. And whenever the truth is hidden from us, our ability to prevent tactical mistakes and to generate “outside the box” solutions is sorely compromised.

I’ve conducted mediations that should have, could have and probably would have resulted in a resolution that instead ended in an unnecessary impasse because one or more parties hid the truth from me and opted for negotiating tactics that predictably backfired. Had the parties shared the truth about their realistic goals and expectations, perhaps I would have been able to prevent some of those negotiating blunders: i.e., the ill-conceived opening demand; the unreasonably low opening offer; the move that was “too small,” leaving the opposing party no choice but to respond in kind; or the move that was “too big,” altering the opposing party’s expectations.

I’ve also worked with counsel on both sides who have told me — at the very outset — exactly what it was going to take to reach a resolution, trusting me to help them devise a negotiating strategy that would maximize the likelihood of success. I can tell you from experience that this approach has seldom failed.

At the outset of every mediation, I tell each party that my mission is to help them obtain the information they need to make the most informed decision possible — whatever that decision may be — but that I will only be able to accomplish that mission if I can fully rely upon the information they provide.

In mediation, as in life, it often comes down to a choice between truth and consequences.

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