Much of a mediator’s work is devoted to uncovering the truth.
Not the truth about the events that may have given rise to the dispute because “the truth” — in the context of most litigation — is whatever a jury, judge or arbitrator ultimately determines it to be. Perhaps noted German philosopher Friedrich Nietzsche was referring to litigation when he said: “there are no facts, only interpretations.”
The truth mediators seek to uncover is the truth about the parties’ positions and their interests. Mediators probe to learn what is most important to the parties and what it will REALLY take to reach a resolution because when we know the truth about the parties’ goals and expectations, we are better able to propose negotiating strategies and other suggestions that might lead to a resolution. And whenever the truth is kept from us, our ability to prevent tactical mistakes and/or generate “outside the box” solutions is sorely compromised.
I’ve conducted mediations that should have, could have and almost certainly would have resulted in a resolution that instead ended in impasse because one or more parties hid the truth from me and pursued 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 or the unreasonably low opening offer; the move that was either “too small” (leaving the opposing party no choice but to respond in kind) or “too big” (altering the opposing party’s expectations); the decision to withhold surveillance or other impeachment evidence for trial when revealing it during mediation might have been more valuable; and, worst of all, the decision to walk away from the negotiating table prematurely.
I’ve also worked with counsel on both sides who’ve told me — at the very outset — exactly what it was going to take to reach a resolution, trusting me to help them design a negotiating strategy to maximize the chances of success. I can tell you from experience that this approach has proven to be not only more successful, but less stressful and frustrating for the parties.
At the start of every mediation, I tell the parties the foundation of mediation is self-determination and that my primary role as mediator is to help them obtain the information they need to make the most informed decision possible, whatever their decision might be, but that I will only be able to do so if I can fully rely upon all the information they provide to me.
Whether the parties tell me the truth, of course, is entirely up to them. But in mediation, as in life, those unwilling to tell the truth must be prepared to accept the 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