Perspectives from a Mediator/Arbitrator

Monday, April 17, 2006

Mediation tip #4 - Marshalling the Facts - Part 2

In this part, I would like to write about the reliability of memory. Recently, I was having a nice discussion with another arbitrator. Our conversation made its way to September 11, 2001. For my generation, this is our "Kennedy assassination". People remember exactly where they were when they heard the news and people stopped what they were doing and concentrated on one event (or in the case of 9/11 a series of events). But how well do they remember the details (the facts if you will) of what happened? I remember reading shortly after 9/11 about a study that was going to be conducted about memory. A large group of people was going to be studied in relation to the memory of the events of the day. Over time they would be interviewed about what happened. What was the airline that hit the first tower? What was the flight number? How many people were on board? How many hijackers were there? Where did the flight originate? Where was it supposed to be headed? etc.

The arbitrator I was speaking with said that he did not recall that the second tower to be hit came down first. It is a bit illogical that the first tower remained standing well after the second tower to be hit crashed to the ground but that is what happened. Now I hazard a guess that on September 11 almost everyone would have remembered the order in which the towers fell correctly. A couple days later some would have forgotten. Now almost five years later, I expect most people have forgotten.

What does this mean for us working in ADR? I approach the facts carefully and with great caution. People forget not just small details but often quite significant detail. Yet, some people can insist with great fortitude that their version of the facts is correct.

A second issue about fact that I think is often misunderstood is that two people can be in an interaction and have very different recollections as to what happened. It is not that one person is lying or that one person has a different recollection - it is that they experienced the exact same event and yet perceived it differently - thus coming away with a difference as to the facts - how then can we say who is right about the facts.

When I am mediating - the facts are often the most interesting aspect of the case for both myself and the parties. However, my approach to the facts is often quite different from the parties. I come to the table with an awareness that a recollection is just that - a recollection - and that there may have been a difference as to what happened even if we had been there at the time of the interaction to ask the parties.

The facts of a case usually have the largest impact on the outcome of a case. Parties, however, should be careful not to get too caught up in their version of the facts as the other version may also have happened even if that version is illogical or inconsistent with your own version of the facts.

Coming near the end now - next up - working out the deal!


Post a Comment

<< Home