When disputes don't settle, it's reasonable to ponder the causes. Everyone has pet theories - high emotions, unreasonable lawyers, cognitive biases - and all have merit. However, most experienced mediators I've spoken to agree that facts have more influence than the law in driving settlement negotiations.
How parties and their lawyers approach facts, therefore, justifies consideration. Lawyers are often at pains to point out to clients that the law isn't science; that right answers have limitations. However, the litigation process strives to narrow and nail down facts, thereby (unfortunately) entrenching views, polarising parties and diminishing scope for compromise.
On one view litigation is archaeology: an attempt to rediscover and understand past events, people and places. In this regard, lawyers have more in common with historians than clients might readily suppose. Where seemingly they differ, though, is in their attitude towards facts. The view to which clients instinctively subscribe - and lawyers tend not to demur - is that of the 19th-century historian in which facts simply have to be assembled to produce an objective and accurate picture of the past.
The Cambridge historian EH Carr broke with that tradition, most notably in his published lectures comprising the thin volume of "What is history?" (1961). Carr posits another, more subjective view of facts, which I often find cause to reflect on in mediations: "The facts," he says, "are really not at all like fish on the fishmonger's slab. They are like fish swimming about in a vast and sometimes inaccessible ocean; and what the historian catches will depend, partly on chance, but mainly on what part of the ocean he chooses to fish in and what tackle he chooses to use – these two factors being, of course, determined by the kind of fish he wants to catch. By and large," he concludes, "the historian will get the kind of facts he wants. History means interpretation."
If one accepts this view, a downward plunge into the murky waters of relativism might seem a foregone conclusion. (In a mediation setting, one can easily imagine the ire that would greet the suggestion that one man's subjective facts are every bit as valid as the next man's.) Carr tackles the suggestion head-on. While pointing out the "untenable theory of history as an objective compilation of facts", Carr condemns "the equally untenable theory of history as the subjective product of the mind of the historian."
What Carr proposes instead is some give-and-take, a middle path. In Carr's definition of history, it is "a continuous process of interaction between the historian and his facts, an unending dialogue between the past and the present." As applied to litigation such a view offers both sides far greater room for manoeuvre.
Carr was controversial, but arguably only in the detail: Sir Geoffrey Elton, among others, lambasted him for his "whimsical" distinction between "historical facts" and "facts of the past", finding it "...an extraordinarily arrogant attitude both to the past and to the place of the historian studying it." But Carr isn't altogether wrong, and his larger point on subjectivity should not be lost.
An equivalent revolution in approach in the law seems overdue, but at the same time increasingly unlikely. The rise of artificial intelligence offers the promise of greater accuracy and greater objectivity. The English Court, for example, no longer considers document review by humans the "gold standard." But predictive coding remains very much a servant of human masters and their biases. And as litigators fish in ever vaster oceans, interpretation rather than mere assembly of the facts should properly become a greater concern to all involved.