Those of you on the wrong side of sixty, like myself, will remember being glued to the old Philco each week hearing those ominous, deep-throated words calculated to draw us closer to the radio:
“Who knows what lurks in the minds of men? The Shadow knows!”
As memory serves me, and that is open to increasing debate, even the Shadow, while invisible and standing nearby, knew only what he heard others say. I do not recall his being able to read minds. But let’s not get too technical. The message was clear. Only the Shadow could know what someone was thinking, what lurked deep in their psyche. We ordinary mortals did not have a clue.
And this is what my message is about. In the course of litigation and mediation, an attorney, mediator, adjuster or litigant cannot know what is truly on the mind of a participant in the process. We can guess, and occasionally we’ll be right. More often, we’ll miss the mark, then be surprised by the outcome.
When I was still in corporate practice at a major utility, we tried two cases that demonstrated how a hidden agenda can influence the outcome.
In one, the plaintiff claimed to have suffered an injury from electric shock while using the telephone. Although an electric line did come down in a windstorm striking a phone cable, there was much testimony over whether current could or could not have reached the earpiece. The plaintiff and her counsel were Black, a consideration that was of no concern to the defense but had a definite bearing on the outcome.
During deliberations, a Black juror, remaining silent during an hour’s debate over the operation of breakers, relays and other technical devices, finally had to be asked to express his opinion. He pulled his chair toward the table and said: “I don’t know anything about all this technical stuff, but I know these people, and she’s not hurt.” End of deliberations, verdict for the defense.
In the second case, the utility was convinced it “had it in the bag,” principally because there was an electrical engineer on the jury, an unusual development—in retrospect, plaintiff’s counsel probably knew something we did not—and it was believed he clearly would support the defendant’s arguments. Surprise. Verdict for the plaintiff.
The engineer was elected foreman—had we known that, we’d have been even more confident—and came up to us after the trial. He explained, almost apologetically, that, while he certainly was familiar with the workings of an electric system, he “could not let the plaintiff leave without some money.” A mediator, of course, will make every effort to uncover hidden agendas from the participants in a mediation, since he or she knows well that lurking motives can have a bearing on whether a dispute is resolved or not, or in what manner. The mediator also knows that, even with the best of efforts, they will never all be uncovered.
To be clear, I am not talking about evidentiary matters that have been, can be or will be uncovered in the normal course of legal or voluntary disclosure. Sometimes, the most troublesome “evidence” consists of personal biases, psychological bents, ulterior motives, or pressures from family and friends, to mention just a few.
It is essential that attorneys and adjusters appreciate the importance of hidden agendas. They can play a major role in negotiations, but, more often than not, decisions nonetheless will have to be made without knowing what they are. Cordial conversations, courteous inquiries, and patience can go a long way toward knowing more about your adversary and what makes him, her or it tick.
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