Putting aside emotional speculation to focus on facts in mediation
I’ve had the pleasure of mediating a significant number of boundary line disputes between neighbors. It is rare that the parties have not had prior face-to-face meetings gone wrong, with emotions preventing any reasonable resolution without help from attorneys.
These emotional meetings are often followed by what I call the “fallacy of bad intentions,” which goes like this: because my neighbor is trying to take “my” land, their every action must be intended to offend me.
In one case, a party told me that from their window they saw the neighbor spitting in the direction of their property, and she assumed that it was directed at her. I was pretty confident the neighbor had no idea she was watching from the window.
Boundary disputes are not the only types of cases where the fallacy of bad intentions appears. I encourage attorneys to have some healthy skepticism when they hear horrid details from their clients after emotional encounters with the opposing party. Describing the other party’s conduct as egregious is often a means of justifying one’s own conduct.
Although allowing your clients to vent in mediation serves a purpose, you may need to curtail their off-topic accusations that are not in the best interest of settlement. Helping your clients focus on the legally relevant facts will be instrumental in crafting a resolution. There are a couple of ways to do this. One way is to have the client participate in creating a list of provable facts and evidence in the case that support not only your client’s position but also the other party’s position. Another way is to walk through the jury instructions with your client and discuss the facts that support each element of the claims. This will help to illustrate the full picture for your client and help them understand what a jury would or wouldn’t consider.