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Mediation over-confidence - A cautionary tale

Updated: Jul 1

I want you to picture a situation.  You are a parent of 15-year-old twin boys, Ben and Evan.  You also recently bought a brand new 65” flat screen TV.  It was quite the upgrade from your old 36” model.  While reading the paper in the kitchen, you hear a loud crash and the sound of breaking glass.  You rush into the living room to see your two sons standing either side of your now smashed TV.

After checking that no-one is hurt, you ask each of the boys what happened.  Here’s their stories:

Ben’s story: I was just over plugging in the xBox when Evan came over and shoved me for no reason.  I stumbled into the TV and it toppled over.

Evan’s story: I came into the room and told Ben to get away from the TV as he’d been on the xBox all day yesterday. I told him I needed to watch movie for English homework and I wanted to watch it on the big screen. I walked over to the TV to turn the xBox off.  Ben started to stand up and tripped over the xBox cable, falling right onto the TV.

So with two different stories, how are you supposed to decide which one is true.  Without a camera recording or an eye witness, it is somewhat of a guessing game to determine the truth.

I share this story because it is not dissimilar to a court proceeding where the issues are not legal but arise two different versions of the story or the “facts”.  In one of my mediations, the outcome of the proceedings was going to almost solely depend on competing stories of an oral agreement that was put in place, regarding what was either a loan or a partnership. Each side had a different story of what had been agreed and there was nothing in writing.

Now sadly, this mediation did not settle.  Why?  Well, firstly, each of the parties had a strong view that their story was correct.  Of course, as a good mediator, I tested their thinking of this using a similar analogy to the one above.  I tried to share that the judge can only make a decision based on the two different stories in front of her. Not having been a party to the conversation herself, the judge will be making a best guess as to the truth. In civil cases they will be looking at which story is more likely “on the balance of probabilities”.

The second, and perhaps bigger, reason why the mediation didn’t settle was that each of the lawyers held a strong view that their client’s version of the story would be the one believed by the judge.  Neither lawyer wanted to advise their client to settle because they were confident their client’s version of events would prevail at trial.

This matter reminded me of the research that tells us that lawyers are generally more pessimistic than the general population.  However, in assessing their prospects of success at trial, other research suggests that this is the area where lawyers tend to be more optimistic.

The risks of unwavering optimism in your own narrative are significant. Just as a parent might struggle to work out which child is telling the truth, lawyers and their clients must recognise that the court may not always side with their version of events. Overconfidence in the righteousness of your position can lead to a refusal to compromise or consider alternative resolutions, potentially resulting in a less favourable outcome when the decision rests in the hands of the court.

The lesson here is clear: while confidence in your case is important, it is equally crucial to recognise the risk that a judge is working with imperfect information. Using the opportunity of mediation to seek a commercial resolution that builds in this risk may save you significant time, stress and cost even though you won’t walk away “happy”.

To learn more about how mediation can assist in the resolution of your disputes contact us for a confidential, no-obligation discussion.

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