Sunday, June 17, 2012

The elusive truth

Lawsuits present two competing versions of events, or at least two different interpretations of the same events. In most cases, that just means that the two sides remember those events differently, or interpret their significance differently. Some lawsuits, however, give the fact-finder no alternative but to find that one side is lying and the other side is telling the truth. I mediated a couple of cases in the latter category recently. One involved a claim of forgery. Another involved a claim that a car accident had been staged to defraud the insurance carrier.

These cases made me think about the different methods we use to determine which side is telling the truth in litigation, and in mediation. Trials contain a host of procedures that are supposed to assist in discovering the truth. We are entitled to examine the evidence in advance of trial. We count on the jury's ability to discern from the demeanor of witnesses testifying under both direct and cross-examination, whether or not they are telling the truth. Litigants tell me all the time that they want to pursue their claims in court so the truth will come out.

But how confident are we really in the ability of the judge or jury to find the truth in court? At trial, at least one side, and more often both sides, are trying to shade the truth, yet the jury is expected to discern the truth from two competing accounts, neither of which is fully accurate.  If litigants really believed that the truth would come out in court, at least one side should be fearful of that result. Yet cases where the parties' stories can't both be true go to trial all the time. That means unscrupulous litigants must feel confident that they might succeed in pulling the wool over the jury's eyes.

Mediation, on the other hand, does not even pretend to be designed to discover the truth. In fact, mediation sometimes seems designed to prevent the truth from being revealed. No procedures are in place to insure that only reliable evidence is considered. No penalties are imposed for lying. No findings of fault or admissions of guilt are required. Everything that happens in mediation is confidential. And most mediators feel constrained by notions of neutrality not to give any indication of which side might be lying and which side might be telling the truth. If I as the mediator become convinced that one side is lying and the other side is in the right, that may impair my effectiveness, because I will unconsciously favor the side that I feel is in the right, and the other side will probably lose confidence in me. Instead, I might try to persuade both sides of what I was talking about above--that they should recognize the imperfections of the court system, and the range of possible outcomes in court, and settle the case so as to avoid that uncertainty. That lecture is designed to give pause even to the side that knows it is in the right. In any event, mediators can't feel 100% confident of our ability to tell who is in the right. And it is not always necessary to do so to resolve a conflict. It might not even be desirable. Besides, in cases such as the ones I am describing, at least one side, and probably both sides, already know who is telling the truth, so we don't need any sort of formal process to tell them what they already know. What we might need is a face-saving way out for the party that is lying.

Now if you have the wisdom of King Solomon, who had to mediate the famous dispute between two women who both claimed to be the mother of the same child, you might feel more confident in your ability to determine who was right. Solomon purported to offer an arbitration-like solution to the problem. In fact, however, his proposal was designed to allow the parties themselves to reveal which one was the real mother. Sometimes I wish we could devise similar tests that would force the parties themselves to reveal which one is undeserving. And I would be curious to hear whether other mediators think they should try to do that. Even without such tricks, however, truth may be revealed in mediation, maybe just as often and just as accurately as trial. Sometimes the guilty party exposes himself, knowing there is no penalty attached to doing so. Often the negotiated outcome reflects the parties' knowledge of who was more in the right. And some cases will not settle unless the guilty party formally admits wrongdoing and offers to make amends.

I haven't settled either one of the cases I described above  . . . yet. These kinds of cases might be particularly difficult to settle because the side that knows it is right does not feel it should compromise, while the side that knows it is wrong does not want to admit that the game is up. Nevertheless, we got very close to settlement in one of these cases, and there is still hope. In the other, there were probably some very powerful reasons why whichever party was perpetrating a fraud would not reveal himself. It is quite possible that neither mediation nor litigation will ever reveal which side that was. Resolution of conflict does not depend on that, either in court or by negotiated agreement.

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