The Facts, They Aren’t a-’Changing: What Songwriters Understand About Mediation

A few weeks ago, the Los Angeles Times ran an article describing the remarkable number of times that Bob Dylan's lyrics have been used in appellate decisions. Reading the article, it occurred to me that Dylan may just be the muse of mediation - so many of his lyrics ring true in the context of mediation that he must have been a mediator in a prior life. And it's not just Bob Dylan. Paul Simon's observation: "A man hears what he wants to hear and disregards the rest" is particularly relevant to a pervasive issue in mediation - the difficulty in convincing parties to a lawsuit that their version of the facts and law is not the only possible version; that the other side has a different version; that the trier of fact will hear both versions; and that it is possible that the trier of fact may adopt the other side's version, or even a mix of both versions.

For a very long time I believed that parties and lawyers anchored themselves to their one version of the facts and law as a natural product of advocacy - take a position, argue it, and stick to it. To some extent, this is certainly true. But I have come to realize that often the difficulty in persuading a party, or the lawyer, to look past their own version of the facts and law does not merely arise because of advocacy. I believe that it is something entirely different and something that is rooted more in human nature than a result of the litigation process.

It seems that in life, all of us as human beings, have a natural tendency to gravitate toward "facts" and arguments that support our position and to disregard that which contradicts our position. We see this phenomenon in so many way, whether in politics, art, or social interaction. For example, if one were to generalize, one could remark that liberals are unlikely to be listening to Rush Limbaugh on the radio. More likely, they are listening to NPR. Conversely, political conservatives are unlikely to be listening to NPR and perhaps more likely to be watching Fox News.

The question is why? I believe the answer is that we listen and watch and absorb material that affirms what we already believe. Thus, liberals listen to NPR because NPR provides information and opinions with which they already agree. That information and those opinions therefore "resonate" with liberals because they affirm, or perhaps confirm, deeply held political, social or personal beliefs. For the same reason, political conservatives watch Fox News because the news, information and opinions on Fox News confirm, or affirm, their politically conservative views. At the very same time, the political liberal cannot abide Fox News (and the political conservative cannot abide NPR) because the information and opinions are directly contrary to the cherished their beliefs and views.

What is the importance of this to the mediation process? In a lawsuit, the parties and their lawyers spend endless hours developing the facts and legal theories to support their case. The facts and law become the equivalent of deeply held political, social or religious views. As a result, the parties and their counsel gravitate toward only those facts and arguments that support their position and they resist and tend to denigrate the force of contrary facts and arguments.

The creates a problem for the mediator and the mediation process. One of the functions of the mediator is to challenge a party's views by pointing out possible weaknesses in the facts and legal theories and focusing on different facts and legal theories that will be presented by the other side. The reason is quite simple: At the trial, the trier of fact will hear both sets of facts and legal theories and will have the responsibility of sorting out which set of facts and theories they wish to adopt to support their decision. The trier of fact, unlike the parties, is not "wedded" to a particular set of facts and arguments - they listen with a fresh and neutral perspective, free from the deeply held beliefs of the parties.

It is often the case that the natural human unwillingness to hear and consider contrary facts and arguments impedes the resolution of disputes because it does not allow the party or lawyer to rationally consider risk factors that are critical to an analysis of how or why a case should be resolved. In the simplest of terms, a party who cannot hear and process contrary information will not accept the idea that there is any risk in the litigation process because that party will, irrationally, believe that the trier of fact will likewise hear and accept only their version of the facts and law. Thus, in the irrational mind of that party, there is no risk of a contrary result and hence, no reason to settle.

It has been my experience that parties and their lawyers are surprisingly unaware of this tendency to focus only on the "good" and to ignore the "bad." It has also been my experience that simply pointing out the "bad," or suggesting how unlikely it is that the "good" is the only version of the events is rarely helpful in reaching a resolution. It is usually perceived as resistance on the part of the mediator, or dismissed as an attempt by the mediator to lower expectations. I have discovered, however, that when I discuss in an open way the reality of this human tendency to listen to and accept supporting information and disregard and dismiss contrary information, and to show that the same thing happens in a lawsuit and in mediation, there is often a remarkable change in a person's willingness to consider other facts and arguments.

To accomplish this, I typically use some of the above examples. I find that almost everyone is either a political conservative or a political liberal and they can readily identify with the idea of watching Fox News or listening to NPR. This example seems to be effective in helping them to understand that in their lawsuit, they are doing much of the same thing - focusing on that which they already like and ignoring that which offends them.

For the attorneys who represent clients in mediation, or who counsel clients during the course of litigation, the ability to have professional distance from the facts and legal arguments is critical to gauging the case's strengths and weaknesses. But because they share the same human qualities as their clients, counsel have the tendency to be pulled toward the positive and repelled by the negative. For everyone involved, an awareness of this natural tendency and that the trier of fact is free to carefully examine both sides of the case is critical to making a rational and effective analysis and reaching a satisfying resolution.

Or, as Bob Dylan put it in "Like a Rolling Stone": "You said you'd never compromise with the mystery tramp, but now you realize

He's not selling any alibis

As you stare into the vacuum of his eyes

And say do you want to make a deal?"