Facts, alternative facts and Mediation



At the beginning of every mediation, I urge the participants to talk to each other about the facts they have relied on in creating their “picture” of the case. I caution them that it is not an invitation to have a debate because debates have winners and losers. Instead, the conversation is designed to create an understanding of the other guy’s point of view. I tell them that the process will reveal to them not only the structural differences but the facts that overlap. It will also reveal the emotional forces that influenced them while they were creating their “picture.” Rather than arguing about who has the prettier picture, they can acknowledge that they have feelings about their differences. The process allows that we all have feelings about facts. With all the parts of their controversy out of the dark and into the light (facts and feelings), they can begin work on an outcome “with benefits.” It is an efficient process that has the best chance of yielding a reasoned and rational outcome; in other words, an outcome that makes sense to them.

The current controversy about facts and “alternative” facts is deeply troubling to me. A reasoned search for the truth is the core of our judicial system. That search is often a profoundly difficult task. I have learned from experience and from study that resolving conflict is one of the greatest challenges any of us confront in life. Without conflict resolution processes and skills that rely on facts, our freedom is at risk.



quote-first-you-win-the-argument-then-you-win-the-vote-margaret-thatcher-93-90-20In this recent political season, it was a binary world with only 2 outcomes – winning or losing. You didn’t find First you win the argument, then you win the vote on a bumper sticker.

Likewise, many people lack a personal philosophy that is grounded in negotiation and compromise – in Getting to Yes. They see every conflict as a zero-sum game. Too many clients are angry and cynical with unrealistic expectations of their lawyer and the legal system. They are ready to blame others for their own unfortunate circumstances. A sense of accomplishment can be elusive for a lawyer.

But there is a bright side to all of this gloom. Trials, which allow only win-lose outcomes, are slowly being supplanted by structured negotiations with judicial oversight. Lawyers seem to me to be getting better at negotiating. Negotiating a deal that ends a challenging and expensive controversy can provide a level of satisfaction and accomplishment that far exceeds winning the jury or judge lottery.

Fierce litigators, long at the top of the lawyer food chain (and grist for bad lawyer jokes), are slowly being replaced by successful negotiators who can craft outcomes grounded in reality. I for one, am optimistic that in time, things will get better.




For those of us employed in the law business, knowing how to argue is an essential skill that is often in short supply. That fact can make a lawyer’s life miserable, both in practicing without adequate skills or dealing with someone else lacking those skills.  “How to argue is something people are taught. You learn it by watching other people, at the breakfast table, or in school, or on TV, or, lately, online. It’s something you can get better at, with practice, or worse at, by imitating people who do it badly.  More formal debate [for instance, presenting reasoned argument to a judge or jury] follows established rules and standards of evidence.” “Debating, like voting, is a way for people to disagree without hitting one another or going to war; it’s the key to every institution that makes civic life possible, from courts to legislatures. Without debate there can be no self-government.” (Lepore, The State of Debate 2016)

On September 26, the first Presidential debate of this election will take place. It won’t be a debate in the sense that the delegates to the Constitutional Convention debated the terms of our Constitution in 1787 or that Lincoln debated Douglas in 1858. It won’t much resemble the Kennedy-Nixon debate that took place 56 years ago. It will follow a format that defies meaningful discourse; questions posed by Lester Holt, despite his best efforts, will reveal little information that can serve as the basis for thoughtfully choosing one candidate’s policies and leadership skills over the other. The debates are, as Walter Cronkite said, “…part of the unconscionable fraud that our political campaigns have become” and they should be a source of deep concern for voters who support our form of government.



shutterstock_70288444-300x300The mediator who succumbs to the temptation or accepts the  to tell the parties what he or she thinks is a good, likely or reasonable outcome takes on a distinct role – that of Aristotle’s orator. This mediator abandons the notion that there are any systems to guide the parties and, perhaps more importantly, assumes that the parties “are persons who cannot take in at a glance a complicated argument, or follow a long chain of reasoning.” The mediator who makes predictions or suggests outcomes then has to set about figuring out how to persuade the parties that he or she is right.

The orator (mediator?) must consider how to arouse and use the passions of his audience as well as calculate how far to go in displaying his own emotions. He must consider the moral character of the audience to which he is appealing, and in this connection he must try to exhibit his own character in a favorable light. Finally, he must know the various types and sources of rhetorical argument – not only what sources of rhetorical argument are available for a particular purpose, but also how to employ each argument most persuasively. The Great Ideas, Mortimer J. Adler, MacMillan Publishing Co., New York, 1992, page 742

Those mediators who believe in making predictions or suggesting outcomes delude themselves when they argue that they do not think that their predictions are accurate, their suggestions are not worth acting on or that they do not intend to cause an outcome that they want to see. Otherwise, why would anyone ask them for predictions or suggestions and why would the mediator offer them? Even more pernicious, why would a party continue to use the same mediator again and again?

I think that the appeal of using neutral evaluators and mediators who morph into judges is misguided. For the past several decades, I have begun every mediation by alerting everyone, including lawyers, that at some point they might think that I was arguing with them and if they had that thought, they were probably right. And, no, I am not the devil’s advocate.

I do not think that all arguing is inherently a bad thing. It is bad when you are rude to people, when you talk over them or you select language designed to antagonize or demean them. My purpose for engaging them in conversation, asking questions and perhaps arguing with them is to be provocative – to alert them to my difficulty in making sense out of what they are saying, to flaws in their reasoning and their logic and to gaps in their “proof.” I do not need to be right or make someone else wrong. That is a critical and guiding principle in my understanding of mediation. I see my role a bit like the image in the ad of the elephant sitting on the chest of the character who is suffering from COPD – if my questions are making you uncomfortable or you are having a tough time constructing answers that survive careful, impartial testing – then consider changing your thinking (and get out from under the elephant.) Or not!

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This entry was posted in CONFLICT RESOLUTION, Divorce Mediation, evaluative mediation, Family Mediation, legal education, mediation, MEDIATION MATTERS, mediation training, NEGOTIATION, transformative mediation and tagged active listening, ADR, alternatives to litigation, conflict resolution, conflict resolution training, divorce, mediation, mediator training, IMPARTIAL MEDIATOR, neutrality on January 7, 2015.