EVEN MORE ON DECEPTION DURING MEDIATION

I’ve received several calls and emails about recent posts regarding deception during mediation since it’s a difficult topic for mediators to manage .

One mediator told me she doesn’t care if disputants lie to her because there is no way for her to determine if anything that’s said is truthful or not. Furthermore, it is not part of her role to determine if a disputant is lying. However, she makes it clear that she will not lie for any party. For example, if a disputant asks her in caucus to tell the other there are no circumstances they’ll settle for more than $50,000, while revealing to her they’d actually go as high as $55,000, with this knowledge she chooses to avoid informing the other party of this position because even though the statement is true, she’s being asked to lie knowing that one party is actually willing to pay more. Instead, she deals with the request by developing a communication that maximizes the opportunity for settlement and maintains her principles.

When I presented this example to another mediator they also agreed they wouldn’t deliver such a message, but in contrast, felt it would be inappropriate for him to prevent the party from saying it themselves. This raises the question if mediators have any responsibility or liability when they know a party is lying in cross talk.

Before answering that question, consider that researches have shown negotiators in mediation, as well as in other contexts, routinely lie and some researchers contend the very process of negotiation is inherently deceptive.

So the question is, if the mediator is aware of deception during the negotiation, what obligation, if any, does the mediator have?