Perspectives from a Mediator/Arbitrator

Sunday, April 02, 2006

Mediation tip #4 - Marshalling the Facts - Part 1

Every dispute is based on "what happened". The person (and when I use person I am including any party that could commence an action including non-persons!) who starts the formal legal process is doing so because of a concern (it can often be put much higher than that) about "what happened". The person feels aggrieved. Often (in fact I would say usually) the person against whom the matter is brought also feels aggrieved. That is because of "what happened". In a mediation, the parties want to tell the mediator "what happened". We call this the facts!

Usually I have a pretty good handle on the facts before the mediation commences because the parties have sent me a brief of the case. If not, the parties can "bring me up to speed" quite quickly. Questions that I have about the facts will usually (I keep using that word because there is very little standard about the conduct of a mediation once it gets going) be asked by me in one of the first caucuses that I have with the parties. In spite of that, parties want to tell me all of the facts - the reason why this is happening in the first place.

The parties frequently disagree about the facts. In a mediation, I try to determine which facts are most likely to be relevant in an eventual judicial determination (what will the judge care about) and try to determine the extent of the difference on those facts and whether I can assist either or both parties as to the likely outcome of that factual determination. It is the outcome of the factual determination that will likely determine the case. Once the facts are determined, the judge will apply the law to the facts.

What should you do about the facts in a mediation? You should try and determine the "key facts". You should let the mediator know why it is that you think that the "key facts" will be determined in your favour. Are there any documents that you can show to the mediator? Is there a witness who will be called? Is there some other fact that demonstrates the problem with accepting this particular fact?

When I get to the mediation, I have read what the parties have provided to me. I assume where there are factual differences that each party has an equal chance of "proving their facts". If you can demonstrate to me that your key facts are more likely to be accepted and why, then I can let the other party know that "based on what I have seen/heard" that it is likely that a certain factual difference will be determined in a certain way. I can then talk about what that might do to the likely outcome of the matter should it proceeed to a judicial determination. In a mediation, you often want to convince the mediator and through the mediator (or directly) the other side that the factual determination will go positively for your side.

Mediations are all about risk versus certainty. The matter can be settled today and the result is certain. There is certainty in the outcome and no risk left for either side as to outcome. The matter can continue and there will be risk (for both sides) as to the outcome. That risk in relation to the outcome is most often a product of the resolution of the differences in respect of the "key facts". By impressing upon the mediator, the likelihood that the "key facts" will be determined your way, you change the risk of the outcome for the other side and assist the mediator in helping you to achieve a resolution.

Having waxed on about the importance of the facts, my next tip will be a cautionary note about the unreliability of facts! That is part of what makes this whole area so wonderful. On the one hand I can blog about how vital the facts are to the process and yet promise you that the next blog will be about how facts are inherently unreliable.

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