Notwithstanding the title of the 2011 best-selling novel by British author E.L. James, there are apparently 65,536 unique shades of gray in the digital world — at least according to Erin Quigley, who is an award-winning underwater photographer and editor as well as a certified expert in the use of Adobe’s Photoshop and Lightroom. That’s a 16-bit of trivia that may be worth bearing in mind the next time you mediate.
One of the obstacles to the resolution of litigated disputes is the inherent tendency of the parties, and/or their respective counsel, to each view the factual or legal issues giving rise to their dispute as having only one possible explanation — an explanation wholly consistent with their position. Naturally, this “black” or “white” approach often renders compromise impossible.
In reality, litigated disputes are seldom — if ever — either “black” or “white.” The determination of a question of fact may depend upon the jury’s assessment of the credibility of interested parties, percipient witnesses and/or paid experts. The determination of a question of law may depend upon the court’s interpretation of a matter of first impression, distinguishable precedent or ambiguous text. Even when liability is conceded, causation and/or the nature and extent of recoverable damages may be contested. Trial venues and judges may not be known until the parties announce “ready. Rulings on motions in limine and other evidentiary issues may be contrary to one’s expectations. Civil Trials in federal court require unanimity; trials in state court do not. Finally, juries have almost unfettered discretion when it comes to awarding noneconomic damages.
For these, and a host of other reasons, recognizing and acknowledging that litigated disputes come in shades of gray is essential to the success of the mediation process.
If one thinks of “black” and “white” as opposite ends of the compromise continuum, it necessarily follows that resolution is impossible unless one party capitulates completely or both parties relinquish their extreme positions and embrace the broad gray spectrum of uncertainty.
The capacity of counsel to see disputes in shades of gray — and, more importantly, to help his or her client do the same — generally makes for far more effective advocacy in the mediation process. Indeed, the ability to persuade one’s own client to view the dispute from a different perspective is frequently the catalyst needed to move the process from impasse toward resolution.
Moreover, it is not a sign of weakness to acknowledge — to the mediator, to opposing counsel and to opposing parties — that a dispute is not necessarily “black” or “white” and that there may be merit in some of the positions and arguments advanced by the opposing party. Rather, doing so tends to lend credibility to one’s own advocacy — an invaluable asset if a “bottom line” must later be drawn.
Whether there are 50 or 65,536 distinct shades of gray, it’s worth noting that most of those shades do include some amount of both black and white — sometimes more black; sometimes more white. That, after all, is the very essence of gray’s anatomy.
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