Attorneys often tell me how eager they and their clients are to take their case to trial. I understand it’s a way to convey conviction to the opposing party. But sometimes this bold/aggressive approach risks shutting off the humility that benefits every attorney, client and mediator in mediation. Even if triers of fact were predictable—which they are not—our powers of prediction only benefit from open-mindedness at mediation.
I have found that I am most effective as a mediator when (1) I approach each dispute with humility and learn from every participant, and (2) the lawyers take the same approach.
I’m a big fan of Malcolm Gladwell’s books. His most recent, Talking to Strangers, asks the question, “Why do our interactions with strangers often go wrong?” He addresses why people are so terrible at spotting liars and often falsely accuse truth tellers, and why we so often misconstrue the intentions of people we don’t know well.
Gladwell explains that people have a natural and strong tendency to assume people are telling them the truth (he calls this the “default to truth”), despite sometimes overwhelming facts to the contrary (e.g., Madoff's investigators defaulted to truth). In addition, we wrongly assume that people’s intentions and emotions are much more transparent than they are in actuality.
During my read, I kept thinking about how Gladwell’s research applies to litigation and mediation. The most obvious connection is that if people do not have the tools and strategies to distinguish true from false, we should expect our triers of fact, judges and juries, to guess wrong nearly as often as they guess right. But I was even more interested in what it means if attorneys and mediators realize how little we are able to trust our instincts about the truthfulness and transparency of clients. I would argue that your first impression on a case is more powerful than you think.
Gladwell’s research on defaulting to truth explains why it takes a giant mountain of evidence to make attorneys distrust their client’s version of events. This is likely exacerbated by an attorney’s obligation to zealously advocate for their client. Attorneys assume that the opposing party’s story is loaded with excuses and half-truths.
Even if attorneys aren’t always true believers in a client’s case, they generally lack a healthy skepticism towards their client’s position. While one can make arguments about why this is in fact good in the competitive litigation environment, it is equally bad in the cooperative mediation process. More importantly, if we aren’t good at identifying truth and justice, and our triers of fact aren’t good at dispensing truth and justice, shouldn’t we be approaching every encounter in litigation with a higher degree of humility?
What about our approach in a deposition? After Gladwell explores the faulty assumptions underlying enhanced interrogation techniques as a means of getting at the truth, he concludes:
“We need to accept that the search to understand a stranger has real limits. We will never know the whole truth. We have to be satisfied with something short of that. The right way to talk to strangers is with caution and humility.”