Limitations of Common Sense

The concept of "common sense" is regarded in our culture as the most practical application of intelligence. Webster’s defines the term as "sound and prudent judgment based on a simple perception of the situation or facts."* Juries are exhorted by both judges and lawyers to use it when weighing evidence; parents tell their children to use it when they first learn to drive or start to date; and politicians urge citizens to follow it when going to the polls.

Unfortunately, common sense, like beauty, is very much in the eye of the beholder. Too often it’s used as a short cut to avoid analysis. Human nature being what it is, most people tend to rationalize that the result they want is the only "common sense" solution. Barry Goldman, in The Science of Settlement: Ideas for Negotiators, refers to this phenomenon as the "self-serving bias."† Until each side to a mediation understands why its opponents think the way they do, settlement will be difficult to achieve, regardless how much effort and skill a mediator may bring to bear.

At the risk of sounding platitudinous, don’t mediate until you’re ready. To be ready, you have to understand the other side’s "common sense" arguments almost as well as your own. And you have to make sure that the other folks are equally well prepared. Do the depositions; disclose the medical records; have frank discussions over lunch (or whatever) with opposing counsel. You don’t have to give away the store or disclose all your hole cards, but you need to make sure you know where your opponents are coming from and vice versa. Your chances of settlement improve when you are ready for mediation, but improve even more when all are ready. Why do you need to make sure your opponent is ready? Because a lawyer who is caught unprepared at mediation loses client control — and that’s not good for either side.

* Merriam Webster’s Online Dictionary (10th ed).

† ALI-ABA (2008), § 2.01(d).