The new portrait of Lady Hale, commissioned by Gray's Inn, attracted a lot of comment last week, not just because it is a very fine piece but, also because of an apparently incongruous bin of red biros.

The artist has explained that red biros are always visible in the courtroom.  Maybe the origins of that custom are explained in a study published in the European Journal of Social Psychology which suggests that red pens prime us to be more critical: ”Red pens, ubiquitous in academic settings, are not inert objects; they are laden with meaning. By virtue of their strong association with failure and error-marking, red pens can change the ways teachers correct student work".  The authors found that "people using red pens to correct essays marked more errors and awarded lower grades than people using blue pens".

Which makes a red pen exactly the sort of tool a Supreme Court Justice would need, working as they do at the cutting edge of linguistic nuance, sifting the wheat of legal principles from the chaff of subtle argument.  

But most of us, even when involved in conflict situations, do not need this degree of critical analysis. Picking holes in people's arguments doesn't get you very far in an argument, and it is much more helpful to read between the lines, and to focus your attention on what is important to people rather than on what they may actually say.

This is what CEDR teaches mediators to do, and it's a point I frequently have to make with my own mediation clients - the resolution of a dispute rarely lies in the binary argument, even if the language does get colourful, and mediation provides an environment in which we can safely explore the entire colour chart of options and interests.  

In contrast, a trial is about shades of gray, and a court judgment is black or white.

Reference:  Rutchick, A. M., Slepian, M. L., & Ferris, B. D. (2010). The pen is mightier than the word: Object priming of evaluative standards. European Journal of Social Psychology, 40(5), 704-708.

Graham Massie is a member of CEDR Chambers, a panel of highly experienced mediators with proven excellence in providing mediation, training and consultancy services to clients. 

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