People being what we are, we often see things very differently from one another. What one person sees as an established and indisputable “fact,” another person may see very differently, for a variety of reasons. A trial witness who is perceived to be totally credible by one person may be perceived by someone else as being biased or incompetent, and therefore not to be trusted. What one person perceives as a “fair” outcome to a dispute, another person may see as totally unreasonable. This is simple human nature, and it’s the reason that juries are inherently unpredictable.
It’s also often the greatest underlying force driving disputes. Over the years I’ve found that, in most cases, it’s really helpful for two reasons for the parties to understand and accept the fact that people simply see things differently. First, in weighing what can be accomplished in mediation against an uncertain outcome at trial, it helps the parties understand that a judge or jury down the road may see things very differently from them. Second, it can also help the parties to see things from the other side’s perspective – which can be a critical first step in embracing the concept of compromise.
In appropriate cases, one method I use to enforce the importance of being able to see things from someone else’s perspective is the “Duck Rabbit” optical illusion that (according to the internet) was created by an anonymous illustrator in late 19th century Germany and was first published in 1892. It looks like this:
I show the image to the parties and their lawyers, and ask them to tell me what it is. Usually, some will say “it’s a duck” and some will say “it’s a rabbit.” I then suggest to them that, if they look at it as if it’s facing to the left, they’ll see a duck, but if they look at it as if it’s facing to the right, they’ll see a rabbit – and usually, those that saw it only one way then tell me that they now see it the other way as well. I then tell the parties that if they look at it and think only “duck,” that’s all they will ever be able to see, and vice versa. It’s a simple but effective way of making the point that, in order to get to the concept of compromise, often the first step is to be able to see “duck” where before one had seen only “rabbit.” And although it’s sometimes necessary for me to remind the parties of this concept as the mediation progresses, I’ve found that this simple device can often be the key to understanding, and ultimately resolution.
By the way – in the interest of full disclosure, I can’t take credit for introducing the Duck Rabbit to mediation. I stole it from my mediator colleague, Brian McDonald, who demonstrated it at a mediation conference I attended several years ago – so, thank you, Brian!!
As always, I remain dedicated to providing the best possible ADR services in the format that best suits the parties’ needs, whether through Virtual Dispute Resolution or in person when it is safe to do so. I look forward to working with you.