DECEPTION DURING MEDIATION

Mediation presents many ethical issues—particularly confidentiality and impartiality.

Generally, confidentiality is the ethical requirement that a mediator will not share information during a session, unless agreed to by the parties or required by law. Additionally, most mediations do not begin without an agreement to mediate in which the participants pledge confidentiality to each other as well. Further, the mediator is ethically bound to conduct the session without giving favor to one party.

The nature of mediation as a confidential process can in fact encourage or seem to support deception. Some mediation participants, short of fraud and reputation, feel that deception is low risk. The opportunity for deception also exists if the mediator chooses to use a caucus or a private meeting with one of the parties. These meetings are considered confidential and the mediator may not reveal to the other party what was said in a caucus. In a caucus the party may make deceptive disclosures or deceptive responses to the mediator’s questions without the risk of objections from the other particpant.

The mediator’s role is not one of a fact finder nor a judge. The mediator deals with the information the parties choose to reveal, truthful or not. The mediator’s role is to manage the communication and by doing so has an inordinate level of influence, but not the role of truth finder.