DO PEOPLE EVER LIE DURING MEDIATION?

Occassionally I am asked if people ever lie during a mediation. And then the follow up question is what do I do about it.

The easy answer is to ask back, "Do people ever lie? What makes you think mediation is any different?"

A more serious answer is first to identify two separate stages in the mediation. In the beginning of a session parties typically want to “prove their case." And, of course, the stories of each participant are different. If they weren't different, there would probably be no conflict to begin with.

I always tell students of my mediation class to recognize and accept that the parties will have different stories. If you were to ask each both separately and privately to tell you who is right and who is wrong, of course, the answer would always be "I'm right; they're wrong." But I also tell students that who is right and who is wrong doesn't matter in the mediation. The purpose of the process is to determine what the parties want to see happen going forward--not to prove who is right or who is wrong from the start. The mediator is not there to determine the facts, but isntead there to help the parties determine what they mutually want to do in the future. From this perspective, I as mediator, am not so concerned about what the parties say about the past as I am more concerned about helping them with relationship issues in order to move forward.

In the later stage of the mediation parties will probably be in negotiation. This stage presents a different situation as parties may attempt to "bluff" each other during the discussions. This can become an issue for the mediator when a party reveals in a private caucus, for example, that they are prepared and able to pay $10,000 for a settlement today. But in negotiation that same party tells the other party that their resources are limited and they are only able to pay $5,000 for a settlement. Should the mediator accept this as "negotiation" and say nothing or should the mediator be concerned that this party is lying.

My personal ethics as a mediator do not permit me to be party to an agreement reached based on misrepresentation. Personally, I can do two things: I can encourage the party to negotiate in good faith and/or withdraw as their mediator.

Over the years I've seen so many people say one thing during mediation and then say something contradictory when in the courtroom. For example, I remember one party strongly contending in a contract mediation that his wholesale cost for a product was $25/unit to which he added 10% to have the other party in the mediation suddenly reveal a copy of an invoice showing that the wholesale cost had actually been $22/unit. He had been caught in a lie and their relationship was forever broken. People lie and as a mediator I can only encourage parties to negotiate in good faith as what they say will affect their future relationship.