Imagine the following scenario: During the mediation of an employment dispute, the mediator has just concluded an initial session with the defendant employer and its attorney. The mediator announces that he will leave the employer’s representatives and its attorney to go meet with the plaintiff employee and her attorney.
As the mediator is leaving the room, the employer’s attorney says, “When you meet with Ms. X (the employee’s attorney), please tell her that I don’t think much of her client’s case.” Subsequently, the mediator asks Ms. X about her view of the case. Ms. X carefully and methodically explains the basis for how she “sees” the case. Her assessment is that the employee has a “strong” case, whatever “strong” might mean. At least on the surface, the respective lawyers do not “see” the case the same way. It’s possible, of course, that the difference in views is, in part, nothing more than puffing. Still, in this scenario, in the absence of puffing, the two lawyers appear to be genuinely far apart in their respective assessments of the case.
Maybe the two lawyers see the case differently because they are operating with different sets of facts. Thus, if the mediator were to take steps to eliminate the difference, the lawyers would “see” the case the same way, or at least the gap between their respective views would narrow. There is some intuitive appeal to this line of reasoning.
Still, imagine an experiment in which a group of law students is given the description of an employment dispute. Everyone in the group receives the same set of facts. Randomly, half the students are assigned the role of the plaintiff employee’s lawyer. The other half are assigned the role of the defendant employer’s lawyer. After they have had sufficient time to master the facts and the applicable law, the students respond, anonymously, to a questionnaire. The primary question of interest to the researchers is, “On a scale of 0.0 to 1.0, what is your estimate of the probability that the plaintiff employee would prevail on at least one claim if the case were to go to trial?” Despite what one might expect, researchers who have conducted similar experiments have found that, as a group, “lawyers” for the plaintiff employee assign a higher probability than do the lawyers for the defendant employer. This finding has been replicated across several experimental designs.
Many of us are familiar with the phenomenon referred to as “my side bias.” In the context of mediation, my side bias manifests as each lawyer’s regarding their client’s case as being stronger than the opposing client’s. In a standard “cure” for my side bias the mediator engages in reality testing. If reality testing is successful, the two parties will move closer together in their assessments of the strengths of their respective cases, thereby increasing the probability of settlement. Should we expect skillful reality testing always to enhance the probability of settlement? To shed light on this question, consider the story of the Princeton – Dartmouth football game of 1951.
The day after the game, one story about the game appeared in the Princeton student newspaper and a second appeared in the Dartmouth student newspaper. The authors, who had been at the game, told very different stories about the contest. In relative terms, the Dartmouth version noted more rules infractions by the Princeton players than the Dartmouth players. The Princeton story reported the reverse.
Subsequently, a sample of students at both institutions watched the official game film for the contest. Afterwards, the students answered a few questions about what they saw. Consistent with the stories in the student newspapers, the Princeton students saw more infractions by the Dartmouth players. The Dartmouth students saw the reverse. Indeed, although they viewed the same film, the two sets of students “saw” two different games.
According to the authors of the recent book The Power of Us, the Princeton-Dartmouth football game demonstrates something very powerful: What we “see” is, to some extent, a function of group membership. The potential import of this reality for the mediation context is worth contemplating. Suppose that the respective lawyers agree on the facts and the applicable law, but “see” the case differently. That they “see” two different cases will make settlement difficult to achieve.
How might a mediator deal with such a scenario. Again, a traditional approach would have the mediator engage in “reality testing” with the lawyer who, the mediator believes, is not “seeing” the case for what it is. Another approach might involve attempts by the respective lawyers to persuade the mediator that their particular perception is more realistic than the opponent’s. There is an alternative that might be worth considering.
The simple reality is that parties to a dispute do not enter into a negotiated settlement agreement unless each party perceives the terms of that agreement to have more value than what an alternative to settlement would provide. Yet, in preparing for mediation, the respective lawyers often do what they are trained to do: persuade the neutral mediator that their view of the case is the correct one. Empirical research supports applying “perspective taking.” Doing so has each negotiating party attempt to see the dispute through the “eyes” of the counterparty. At trial whether the respective lawyers are able to “see” the case through the eyes of their counterpart is irrelevant to resolution of the dispute. Mediated resolution of civil disputes is a different matter.
Social scientists tell us that “perspective taking” can result in reducing the distance between the positions of the negotiating parties. Applying that learning to mediation of civil litigation matters should be straightforward. For example, prior to the actual mediation the mediator could ask the respective attorneys to imagine how they might “see” the case if they were representing the other party. In addition, the mediator could have the parties attempt to “see’ the case through the eyes of the other party. Genuine “perspective taking” in either form should reduce the negotiating distance between the parties and, as a result, enhance the probability of settlement.