The Closer

A Mediation Newsletter November 2013

Sifting for the Truth
by James Rainwater

Considering the significant anniversary of the assassination of President John F. Kennedy, I thought it appropriate to discuss truth and non-truth in mediation. I thought of using the analogous word "digging" for the truth in the title, but oftentimes, material and information is heaped onto the conference table. And we need to discern which presented item is reliable and which is possibly flawed.

A former law professor of mine and mentor, L. Wayne Scott, recently presented a lecture on the JFK assassination. While we may never know the complete truth of the assassination, there is a myriad of information that seems to flow endlessly. This scenario caused me to think about the implications for mediation. Of course, mediation is not such a dark, heinous event, but we are frequently bombarded with differing ideas, facts, and positions.

While a mediator's role is not that of a prosecutor, the mediator should be willing to apply the "smell test" when necessary. That is, when one side makes a statement that seems wildly at odds with the known facts, it is incumbent upon the mediator to ask clarifying questions and, perhaps, diplomatically challenge the party. It is better to have the mediator politely ask questions, rather than opposing counsel raising the level of animosity by hurling retorts and allegations.

Naturally, we are all entitled to our opinions, but we also need to work with actual, provable facts. The more accurate and realistic an assertion is, the greater the chance of a solid agreement being reached. While we want to encourage interaction from the clients, we should pursue rational ideas and set aside those less credible or highly controversial.

Like conspiracy theories, during the mediation conference, we could conceivably entertain dozens and dozens of proposals, assertions, and beliefs. Yet, we do not have the time to follow each one. For fear of falling down countless rabbit holes, we must be prepared to analyze quickly an item presented and make the decision to accept it as the truth or not. When the parties agree to what is the truth, settlement is not far behind.

Rainwater Law