"And they lived.... The End."
In his Masterclass, Malcolm Gladwell teaches the art of leaving a little to the imagination. Comparing storytelling to a jigsaw puzzle, Gladwell approves of leaving a piece of the puzzle – a piece of the story – incomplete. This “imperfection” – as Gladwell labels it – draws the reader in and holds her attention. The imperfection, he explains, piques the reader’s curiosity and recognizes that stories can be messy at times, and that’s ok. In this way, Gladwell invites the reader to use her imagination to fill in the gaps in her own voice and, in this way, join him in the storytelling process.
If we think about the gaps in Gladwell’s stories as ellipses on a continuum, it’s easy to see the similarities in Gladwell’s approach to writing and what happens in litigation. At several points in a legal dispute, the parties and their counsel leave a piece of their puzzle — their conflict — unresolved and ask strangers (a judge, arbitrator, or jury) to fill in those “gaps” with rulings.
Trial lawyers know that every trial is essentially a reenactment of a story. Whether it’s a story about good and evil, the bond of a man’s word, or anything else, at its core – every trial is a morality play in which the parties ask a judge or jury to write the closing scene.
The analogy of an incomplete story that invites a stranger to write the ending might be intriguing to an award-winning author, like Gladwell. But to parties in litigation, the idea of handing control over the outcome of a lawsuit to complete strangers can be stressful and full of uncertainty.
It’s through mediation, however, that parties are able to take control of their own ending. Mediation is that one point in the life cycle of a lawsuit in which the parties are jointly focused on figuring out – if they can – how to end the conflict on terms acceptable to them financially, emotionally, and in all other meaningful ways.
The task at hand in mediation is not easy, however. Whether the mediation session occurs before a lawsuit is filed or while it’s pending, it’s common for emotions to be high, lines of communication to be strained, and for a certain amount of fear of the unknown to impact the decision-making process. For these reasons (and many others) parties (and even their counsel) often begin a mediation doubtful of its usefulness.
And this is where Gladwell’s genius stands out. An ending left unwritten is an ending open to a host of options. An ending that can be shaped by imagination.
The power of imagination is especially important in competitive and uncertain situations, like litigation. Just as sports psychologists help athletes experience competition so vividly in the mind that the athlete can literally smell, hear, see, and taste the moment of victory long before the competition begins, through empathy, understanding, trust, and questions, a mediator can help parties “see” a path to resolution that wasn’t previously thought possible.
Trusting the process and the mediator, parties are able to imagine and accept settlement on terms that might have once seemed unimaginable – perhaps because they didn’t previously appreciate or know about all of the risks or prospective benefits available. Much like the athlete mentally prepared to endure great pain to win a race, parties who appreciate the opportunity mediation affords approach the session in a better frame of mind, and thus more open to brainstorming ways to resolve the conflict.
In the days leading up to a mediation session, therefore, it’s worthwhile to think of the conflict as a puzzle with pieces that will all fit in the end. And to think of mediation as an opportunity to twist and turn those pieces in all kinds of different directions until the picture is clear and a solution is found. Be a realist, but a bit of an optimist too. Channel the optimism to be imaginative and open to new ideas for ending the conflict.
Think about mediation as that point in Gladwell’s story where he leaves a few loose ends unresolved, and says, “I trust you to write the closing.” And know that, most of the time, through mediation, parties discover a way to jointly write and close that chapter in their lives peacefully and confidentially.
Felicia Harris Hoss
is an attorney-mediator, arbitrator, and early dispute resolution (EDR) neutral, with more than 20 years of legal experience. Through the years, Felicia has helped parties resolve disputes both inside and outside of the courtroom in a wide range of industries involving a broad spectrum of claims. Felicia is available to assist parties and their counsel through online, hybrid, and in-person mediations, arbitrations, and EDR processes.
