Sheldon J. Stark
Frequently, disputes arise out of the different perspectives of the parties. Parties may observe the same facts but their perceptions of what happened and why may turn on where they stood, what role they were playing or what they were thinking at the time of the occurrence or event at the center of the controversy. Anais Nin famously said, “we see things not as they are, but as we are.” Looking at the dispute as an objective, third party neutral, mediators may see the figure/ground change back and forth many times as he listens to each share their perspective. Is the image below a woman’s face or a saxophone player?
Sitting at the mediation table listening to parties describe their side of a dispute, I’m often reminded of a book I like to read to my grandchildren, “The Blind Men and the Elephant.” There are multiple versions of the story, but in essence a group of blind individuals visit the circus to learn about elephants. The first approaches the elephant and encounters a leg. “Ah,” he says. “I know what elephants are like. They’re like tree trunks.” The second approaches and touches an ear. “Tree trunk?” he asks. “To me, an elephant is like a large piece of lettuce.” The third approaches the elephant and touches the side. “Lettuce? Tree trunk? To me, an elephant is like a large, rough wall.” Another’s first touch is the elephant’s trunk. “I don’t get what you’re saying,” he muses to the others. “To me, an elephant is like a boa constrictor.” The last reaches the tail and concludes that an elephant is like a rope. Who is right? The morale of the story, of course, is that none of them is right about elephants – none of them has grasped the big picture. Their conclusions about elephants turn entirely on their perspective and where they happened to be standing.
Sharing this story is sometimes helpful in dispute resolution because it reminds us all every story has two sides – and both sides may be plausible. When each story is plausible, both sides have risk. Most of the disputes I mediate are nuanced, subtle, and fact-rich. The merits often turn on issues of motivation and intent. It is rare that the dispute is as straightforward as which party had the green light. In intersection collision cases where one driver did have the green light, considering perspective may not be particularly useful. Useful or not, determining who is right and who is wrong is rarely all that relevant in any mediation proceeding. Mediation is an assisted negotiation. It is entirely voluntary. No settlement will be reached unless both sides view it as in their best interest. While they may agree on a satisfactory resolution, they are rarely going to agree on the facts.
Efforts to move them toward agreement on facts is not likely to be productive.
Mediation is a dispute resolution process, not a fact finding or truth determination process. Accordingly, mediators make more progress and better set the stage for resolution when they focus party attention on risk more than justice; benefit versus cost; recognition of underlying needs and interests; and options for resolution. Mediation is focused on the future. The past is relevant, of course, but discussion about what happens next is the surest path to reaching a mutually agreeable settlement.
Sometimes the most productive avenue to pursue is helping each side understand the other side’s perspective. The mediator is not asking either side to necessarily agree with that perspective. It is often enough when parties better understand what might be driving the controversy. Again, understanding perspective can change the figure/ground of the dispute.
In the following image do you see an older, pensive woman or a fashionable woman in a fur coat?
Consider the following commonly occurring disputes: Was plaintiff disciplined by her employer and treated differently because of her gender – plaintiff’s version; or because she excessively used the office telephone for personal calls – the defendant employer’s version? Would it help if the parties better understood the other and the evidence in support of their perspective? Perhaps. Did mom appoint the sister to be her fiduciary because mom loved her more – as the fiduciary claims; or because the sister exercised undue influence to overcome mom’s true intent – the petitioner’s position? Would it help either side to understand what facts caused these siblings to reach such different conclusions? Perhaps. Did the vice-president of marketing spend more money on the conference in Las Vegas than was budgeted simply to indulge himself – the CFO’s perspective; or were his expenditures necessary to entertain important potential customers – the marketing person’s perspective? When the facts are better known, might it make a difference in resolving their differences? Maybe. Did plaintiff experience minority oppression because his partners became greedy and wanted his shares, too – as plaintiff argues; or did plaintiff cause the situation by bullying his partners and refusing to listen to constructive criticism – as the defense would have it?
A better understanding of perspective in such a dispute might help the parties let go of their grievances. In a non-compete case I mediated, one of the parties complained the other side was not proceeding in good faith. “Their goal is to destroy us. We’re just a little player and nuisance to them. They don’t care about this mediation.” I reminded the company owner that the other side had arrived at the mediation table with its president and 5 top lieutenants – every one of whom had flown to Michigan from out of state. “How much money do you think they’ve invested in this day in salaries and airline tickets alone?” I asked. “They could simply have sent a mid-level HR person if they had no interest in resolution.” The light bulb was clearly visible above his head. The case resolved.
While every story has two sides, we have all seen cases where the truth lies somewhere in the middle. Like the blind men and the elephant, sometimes neither party has it precisely right. Recognizing the role of perspective in how the dispute arose can diffuse and deescalate emotions. Undoubtably, a richer understanding of where the other side is coming from can motivate the parties to look to the future and stop fretting about/perseverating on the past. If we can help parties climb up to the balcony and look down on their dispute to see the a big picture, it may become easier to resolve their differences.
In many disputes, the figure/ ground may reverse repeatedly as the parties express their perspectives. Perhaps consideration of these images at the mediation table will result in a common understanding of how perspectives differ and result in mutually agreeable resolution bringing closure to the dispute.
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Sheldon J. Stark offers mediation and arbitration services. He is a member of the National Academy of Distinguished Neutrals, a Distinguished Fellow with the International Academy of Mediators and an Employment Law Panelist for the American Arbitration Association. He is also a member of the Professional Resolution Experts of Michigan (PREMi, http://premiadr.com/). He is chair of the council of the Alternative Dispute Resolution Section of the State Bar and former chair of the Skills Action Team. Stark was a distinguished visiting professor at the University of Detroit Mercy School of Law from August 2010 through May 2012, when he stepped down to focus on his ADR practice. Previously, he was employed by ICLE. During that time, the courses department earned six of the Association for Continuing Legal Education’s Best Awards for Programs. He remains one of three trainers in ICLE’s award-winning 40-hour, hands-on civil mediation training. Before joining ICLE, Stark was a partner in the law firm of Stark and Gordon from 1977 to 1999, specializing in employment discrimination, wrongful discharge, civil rights, business law, and personal injury work. He is a former chairperson of numerous organizations, including the Labor and Employment Law Section of the State Bar of Michigan, the Employment Law and Intentional Tort Subcommittee of the Michigan Supreme Court Model Civil Jury Instruction Committee, the Fund for Equal Justice, and the Employment Law Section of the Association of Trial Lawyers of America, now the American Association for Justice. He is also a former co-chairperson of the Lawyers Committee of the American Civil Liberties Union of Michigan. In addition, Stark is chairperson of Attorney Discipline Panel #1 in Livingston County and a former hearing referee with the Michigan Department of Civil Rights. He was a faculty member of the Trial Advocacy Skills Workshop at Harvard Law School from 1988 to 2010 and was listed in “The Best Lawyers in America” from 1987 until he left the practice of law in 2000. Stark received the ACLU’s Bernard Gottfried Bill of Rights Day Award in 1999, the Distinguished Service Award from the Labor and Employment Law Section of the State Bar of Michigan in 2009, the Michael Franck Award from the Representative Assembly of the State Bar of Michigan in 2010. In 2015, he received the George Bahara Jr. Award For Exemplary Service from the ADR Section of the State Bar. He has also been listed in DBusiness Magazine as a Top Lawyer in ADR for 2012, 2013, 2015 and 2016.
