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.