VARIOUS DECEPTIONS DURING MEDIATION

Do participating parties lie in mediation?

Often during negotiation, some people may feel they’re being lied to. But that can all depend on what one considers a lie.

Pro-social deception is common in daily life, such as “You look really great today.” Known as little white lies, such deception is usually intended to protect another’s feelings or avoid embarrassment. Then there is false praise or flattery, which can be used as a way to establish trust.

Puffing is exaggerated claims about a product, like when a real estate agent says, “You won’t find a better deal in the city.” Omission refers to failing to disclose relevant information. Paltering is when carefully worded, truthful statements, are intended to deceive without telling a lie, such as saying, “Our best offer is 5%,” even though that can actually be changed. And finally, bluffing is misrepresenting one’s intentions or overstating the strength of one’s position.

A 1968 Harvard Business Review article generated controversy when the author defended bluffing in business as “role-differentiated morality,” that is some professions or social roles are permitted to follow norms that differ from those of commonly accepted morality. Using this position, deception is morally permissible in certain situations because the parties endorse the practice. Think of poker. The parties expect bluffing. In business negotiations the parties expect deception. That argument is even made that negotiation cannot be successful without deception. The Supreme Court guideline in labor negotiations is that claims about mandatory bargaining topics such as wages and conditions of employment must be truthful to satisfy bargaining in good faith but other claims such as the size of the union’s strike fund are considered negotiation posturing. And while the American Bar Association’s Moel Rule of Professional Conduct prohibits lying about material facts or law, but it recognizes an attorney has no affirmative duty to inform an opposing party of relevant facts.

So, it is reasonable to assume a party in negotiation may assume that lying during mediation is morally permissible because parties expect deception throughout the process.

Mediators are not lie detectors. Rather than attempting to discover whether a statement about past behavior is truthful, mediators focus on the future, that is, how the parties move forward. Nonetheless, deception in mediation is challenging. I have heard parties say one thing in mediation and then say the opposite when appearing in court.

Mediators are not mind readers, so parties should not assume that what is said in a session is always truthful.

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Fred Jandt is the author of several books, including his latest, “How To Survive a Mediation.”