Of late quite a number of people have posted their thoughts on this subject on Linked In. Thus far I have only posted some brief comments but I hope that this article which reflects my judicial experience will materially contribute to the debate.
As a UK tribunal judge with the responsibility of making assessments in respect of the levels of disability experienced by individual appellants, one of my prime tasks is to assess the credibility of the oral and written evidence provided by them and their families, friends and often, lay advocates. The vast majority of those who appear before me are ordinary, unrepresented laypeople who have little experience of the law and the legal process. In many instances they will be asked to comment on past issues and circumstances, sometimes going back many months or even years. Some of the necessarily subjective concepts that I have to ask sometimes poorly educated people who do not have English as a first language people to comment on such as “pain”, “depressed”, “declined” and “typical” are in practice quite difficult to explain and many have little conception of notions such as “time”, “distance” and “speed” and many demonstrate poor recall. Relatively few of these people seek advice from a lawyer or specialist welfare rights agency.
My feeling is that in the vast majority of the cases that I have heard in a judicial career that started in 2003, most of the people who have appeared before me have generally “told the truth”. I have encountered some blatant liars but they are very much in the minority. However, many who do not grasp very many of the legal niceties, even when these are explained in straightforward terms, tend to equate their view of themselves as being ill or “disabled” and equating being unable to undertake even a very modest range of daily tasks. Some simply and quite definitely equate “pain” or breathlessness or being depressed with being disabled or being unable to work. Many do not take the balanced all-round view of matters that the law requires and base their views on their perceptions of a worst-case scenario. Others incorrectly tend to look at future scenarios and think in terms of what might happen rather than what actually has happened in the recent or relatively recent past.
Similar considerations apply in the context of mediation. Parties to individual mediations are just as likely to address things subjectively than tribunal appellants. Accordingly, in my view the biggest challenge for mediators and members of the judiciary alike is not so much to distinguish liars from the truthful as to explore the issues and identify the extent to which a subjective but possibly well-intentioned account is correct or at the very least ascertain whether there is any objectivity in it.
Mediators have an advantage over members of the judiciary because they are not cast with the ultimate responsibility of making a yes or no decision. Rather, as well reality checking, something that judges necessarily do, neutral mediators are in a much better position to ask carefully put open questions, reflect back, summarise and crucially, in to put forward creative suggestions. I think that in practice, in mediation as in judicial settings, the relatively few blatant liars that I have been presented with have generally exposed themselves and because they are more likely to contradict or put forward outlandish propositions, they have been relatively simple to spot.
For mediators at least, this will not necessarily be a problematic issue. Because mediation invariably brings out the best in people, mediators often discover that the whole process of exploring issues is welcomed. However indirectly, the time-honoured techniques that mediators use will help their disputing parties to remain objective and get the best out of the process. This can often lead to the parties to individual mediations attaining a level of objectivity that they might not otherwise have attained.
As for the errant liars who often cling to their untenable positions, they are probably beyond the assistance of even the most experienced mediators and their mediations will fail.
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.