The Role of The Truth in Mediation

by | August 2023

Michael Ludwig outside smiling
A thing may happen and be a total lie; another thing may not happen and be truer than the truth.”

I came across this sentence the other day and was struck by its application to employment litigation and mediation. Sometimes, the story of what happened that led to the filing of a lawsuit essentially is the same on both sides. In those situations, the parties advocate for a different narrative, or they argue about the legal significance of what happened.

But most often, the parties’ stories diverge at some point. In some cases, the stories diverge in big ways. A critical document either was or was not received or was or was not signed. Or maybe it was fabricated altogether! A discriminatory or harassing statement either was or was not made. Sometimes the stories diverge in smaller but still significant ways. Both sides might have slightly different recollections of how a particular conversation went. Who said what? Who initiated the conversation? Was the tone cordial or hostile? When did it happen?

When both sides tell a different version of the same story, usually it will be up to a trier-of-fact to decide what really happened. So, for settlement purposes, often what matters most is what a trier-of-fact is likely to believe. That is where the settlement value lies.

For this reason, when I think of the settlement value of a case, I often start with the points at which the parties’ stories diverge. Skilled mediators quickly get to the heart of a dispute this way. The mediator sees the case objectively and without the attendant passion that comes from the adversarial nature of litigation. The fresh perspective a mediator brings to the case is helpful, at least in part, because they are not invested in trying to prove who is right and who is wrong, or who is telling the truth and who is not.

Of course, there are countless other factors that contribute to the settlement value of a case beyond where the underlying stories diverge. But a feature of mediation is that it is not about deciding what really happened or who is telling the truth. And perhaps that is one of the best reasons to mediate, and ultimately to settle—so that we don’t have to decide.

Some Takeaways:

·    When preparing for mediation, focus on where the parties’ stories diverge and why your client’s story about what “really happened” is more believable.

·    Avoid bald accusations of fabrications which can be polarizing and unhelpful without substantiation.

·    Make sure your client is aware that what a trier-of-fact is likely to believe happened often matters more for settlement purposes than what “really happened.”

The quoted sentence above is from The Things They Carried, a 1990 collection of linked short stories by Tim O’Brien about a platoon of American soldiers fighting on the ground in the Vietnam War. O’Brien has been called “the original master of truthiness.”

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Hi I’m Mike Ludwig

I committed myself to honing my craft as a mediator and relentlessly learning everything I could about dispute resolution. I will endeavor to share thoughts and insights about some facet of mediation, negotiation, and dispute resolution, and other information that could be helpful or interesting to you.