Arbitration|Conflict Resolution|Mediation

Arguing the Facts

Enough time has passed since one of our Congressmen publicly accused our president of lying, to allow reflective rumination on the implications to ADR of disputants’ arguing the facts.

As a threshold matter, disagreeing about a knowable fact seems always fraught with risk.  It’s either raining or it isn’t.  Page 463 of War and Peace either starts with the word “Andrei” or it doesn’t.  “You can look it up,” as either Casey Stengel or James Thurber said (people argue over which).   So it was dismaying to witness a member of a deliberative body accuse the executive of lying about something anybody could easily determine — whether a proposed bill did or didn’t have a particular provision.  (Indeed, you might say it was their job to look it up.)

But there are some facts that are not easily “knowable,” and we’ve been told since Raymond Burr in Perry Mason (and EG Marshall in The Defenders) that arguing those kinds of facts is exactly what happens in American adjudication.  One driver says he had right of way and the other denies it.  One side says she identified the suspect upon being roused from her sleep and the other points out the indentations near her eyes showing she requires glasses.  (Remember that one?)  One side says the portfolio was suitable and in conformity with the client’s instructions and the other argues it was not.  At trial or arbitration, determining contested facts is what we are there to do.

In mediation, on the other hand, I urge parties to refrain from arguing about the facts.  They don’t need to convince me and they certainly won’t change each others’ minds.  So it’s not only a waste of time; it distracts from the very hard work of fixing the problem.  Instead, the parties should discount the value of their claims (or exposures) by the likelihood that their adversary might persuade an adjudicator of their version of the facts. 

Thus, from a business perspective, a $100,000 claim that is 75% likely to prevail is worth $75,000 today, and next month it’ll be worth $75,000 minus the transaction costs incurred by persisting to argue about it for another 30 days.

It’s another interesting distinction between consensual and adjudicative processes.  It’s also another reason for businesses to avoid the latter if  they possibly can.  Managers can always manage a contingency or a risk.  It’s a lot harder to manage a fact.

Proof: Who knows whether the president lied (or was mistaken) that night or not?  And who cares: What legislator would ever vote for or against a bill without looking up what it said?  I mean really….

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