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  • Jonathan Pearl

If my memory serves me.....

My dad was a Coroner and held countless inquests into unexplained deaths. He was often amazed how two credible and honest witnesses could give completely different accounts of the same event. Witness A would say: “the car came from the East” and witness B would swear that “the car came from the WEST”.

In a mediation getting to the facts is crucial, as this helps the parties to reach a wise decision regarding their dispute. So, it’s worth keeping the following in mind:

1. Memories are just memories. People often confuse their memories with fact. How often have you been hunting for lost keys/ wallet /phone, and been absolutely certain of where you didn’t leave them– only to find, after 20 minutes of searching, that your recollection was completely wrong? Parties should be gently reminded that memory-only based facts can be very misleading.

2. Your memory is not more reliable because the thing being remembered is extremely important. People are fond of saying “….it’s seared into my brain”…”I’ll never forget it as long as I live” etc. But the brain just does not work like this. If anything, your brain is more likely to throw up a false memory of a stressful situation, than a truly factual one. The brain does this as a means of self-protection.

3. What other people say is no more reliable than your own memory. As kids we all played the “telegraph” game (what used to be called “Chinese Whispers”) where one person says a phrase into the ear of their neighbour, and so on, until the original message is completely distorted. Well, that happens with adults too.

4. Fact-check memories through research. Witness A says: “I remember it was Thursday 22 because I had been watching the final of “Britain’s Got Talent”. Well, it’s easy enough to check that. And it’s likely that any claim like that will be checked out by the other side if it’s material to the dispute.

5. Take contemporaneous notes. Making notes during meetings or immediately after, and asking other participants to confirm their accuracy, helps to build a factual record. This saves time and energy that will be wasted if, later, people have a different recollection of what was said or agreed.

6. Four eyes better than two. I took minutes at Board meetings for many years. These were formulaic and, as papers were usually circulated in advance, there often wasn’t much controversy over the wording. But because these minutes contained the official record of what had been agreed I always had another attendee sense-check them before sending them out. And quite often people suggested helpful and appropriate changes.

7. Use personal records. Parties should be encouraged to check their own personal records to find supporting evidence for their claims.

8. Document the fact checking.

As part of a party’s preparation for any mediation they should record the sources for their claims. Proper sourcing will allow the party being questioned to “close down” any argument that the claim is factually incorrect.