We must always tell what we see. Above all, and this is more difficult, we must always see what we see. -Charles Péguy, Basic Verities, 1943
We are reminded of the story of the three blind men who were asked to touch an elephant and then describe it. Each man approached the huge animal in a different area, and, as expected, each one described it in a different manner.
Mediation is like an elephant. Each participant touches the proceeding in a different manner and comes away with a different impression. Each brings to the proceeding his or her own unique personality, biases, needs, wants, sensibilities — and, oh yes, ego. Each participant, whether party or attorney, invariably has a perspective on the case different from that of everyone else.
Attorneys and mediators are easy prey to the impulse to lump factual scenarios into single pots. “Another rearender.” “Just another whippy.” Thus creating the temptation to treat a particular type of case always in the same manner, to become jaded, to fail to see the nuances involved in the different personalities coming to the table, not to mention the differing factual details and the assessments of those details.
At its worst, the attorneys and the mediator treat the familiar factual situation with disdain or indifference, while the parties seek intelligent attention to what they consider to be, in their eyes, unique circumstances.
Almost as bad is the tendency of attorneys and mediators to harbor preconceived notions or visions about a case. Such preconceptions quickly become barriers to open minds and to opportunities for resolution.
Reality is rarely a constant. It can be illusory, even deceptive. In many legal disputes, parties can have black and white versions of the same reality. Can they bend the truth to suit their ends? Sure they can and often do. But, more often than not, they honestly believe their versions of the truth.
Disputants and counsel, like witnesses, are blind men describing an elephant. It behooves both, as well as the mediator, to recognize the capriciousness of perception and to avoid embarking on settlement negotiations with minds set in concrete. The parties deserve better. Cases can have common ingredients, but never are two of them exactly alike.