One thing that perplexes lawyers, judicial officials and ADR practitioners alike is the consideration of whether those giving evidence or making representations are credible and if so to what extent. The term “credible” tends to go hand-in-hand with the concept of truth and in the context of court proceedings there is an expectation that witnesses will “tell the truth, the whole truth and nothing but the truth”.
I have encountered instances where people do indeed tell blatant lies and in such cases there will at the very least be a strong suspicion that they set out to do so. In my experience, such people are generally quite easy to spot. They tend to contradict themselves but without appearing confused and uncertain about what they are saying and often, it will be relatively straightforward for matters to be checked or verified.
The dishonesty that one reads about e.g. in the UK pensions industry or in the context of tax evasion for online fraud may be indicative of concerning, underlying trends. However, experience also teaches me that as blatantly unacceptable as such wrongdoing is, in reality these crimes are perpetrated by a minority of people and contrary to what the daily newspapers might lead us to believe, most people are essentially honest most of the time. This does not of course mean that all people should therefore be branded honest and that everything they write or say should be accepted as truthful.
In reality, truth is a subjective concept contingent on often quite complex combinations of factors. In all walks of life people invariably premise what they might say on their circumstances and their individual views of matters. There may be a mental health, cognitive or intellectual issue that has some bearing. One person may be overly optimistic, another unnecessarily pessimistic and different individuals will have different views as to what is or is not morally acceptable. Very often, “opinion” is mistaken for “facts” or a particular individual may consider that his or her “human rights” have been infringed, possibly in circumstances where as a matter of law, no such “rights” exists. Often, one person may be unforgiving, sometimes to the point that another person’s past wrongdoing becomes an overriding consideration, even in circumstances where an objective outsider may consider that this lack of forgiveness is not warranted.
Politics, religion, emotion, lack of trust, conscious or unconscious bias or some sense of dissatisfaction or injustice can all play a part and in some; they a person perpetrating a truth that an objective outsider may consider otherwise may honestly and genuinely believe that what has been said is indeed “the truth”. Others, if rather misguidedly, may simply express themselves very authoritatively in circumstances where they have not the slightest idea what they are talking about. In some instances people may be uncertain or confused and lack the ability to express themselves may not ask for such help or clarification as they might need and there is always a danger that perhaps subconsciously, people who do not hear what they want to hear will brand someone such as an opponent in a court case, as a liar.
In a court setting, particularly a criminal court setting, there is an overriding emphasis on absolutes. A stipendiary magistrate or jury effectively has to make a guilty or not guilty decision and accordingly, the attendant process of giving evidence can be very challenging for witnesses. Even in the civil and family courts where the processes are considered to be rather more flexible, there is always a danger that an advocate or indeed a judge will seize on any possible inconsistency or contradiction. In many cases, witnesses will be subject to an element of potentially intimidating cross-examination and will find that the lack of any margin for error means that they cannot explain themselves and they may be castigated or “lose” their cases or indeed both.
The net effect of this is that because the traditional legal system does not generally make allowances for the various considerations identified above or give witnesses the opportunity to contextualise their evidence, even a “winner” may walk away from an individual case with a deep-seated sense of injustice. This in turn means that aside from any ancillary considerations about inordinate time delays, accrued costs or the absence of the hoped for or anticipated apology, wrongs may not be righted and rifts that may have precipitated court proceedings in the first place might never heal.
Mediation and other forms of ADR are flexible and they provide the facility for people to give their “evidence” in the best possible way. A mediator will not tell someone involved in a consumer or contractual dispute that the level of compensation that they are seeking is unrealistic. Rather, by means of asking open questions and encouraging a that person to look at their case from a different perspective, a mediator will very often help to bring about a degree of realisation that may ultimately result in matters being resolved.
Whether in the context of “small claims” mediation or facilitated meeting or else in a process that might last a day or more, by dint of using their listening and questioning skills ASM PLUS mediators help those they are working with to achieve permanent and mutually acceptable solutions. The flexible process that they oversee ultimately means that genuine apologies can be given, misconceived views can be corrected or adjusted and those involved really can move on.
Principal Director of ASM PLUS, civil/commercial, workplace, employment, family and educational mediator and trainer with a judicial/legal background. He has knowledge and expertise in dispute resolution in a wide range of areas and disciplines and mediates online.