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.

Mediators are often asked if they think a disputant is lying.

Small Claims Court mediators who weren’t able to reach an agreement after listening to participants in court will tell you that it’s not unusual for parties to swear by a statement that was contradicted by something they said earlier during mediation.

Saint Augustine observed “It makes a great difference with what intention and on what subject one lies.”  So clearly there are different kinds of lies. With that in mind, consider the following: 

•             Self-interested lies, such as bluffing, which benefit the deceiver and harms the other

•             Prosocial lies which gain trust (“You look really great today” regardless of how the person looks.)

•             Informational lies about facts

•             Emotional lies or misrepresentions of one’s feelings

•             Lies of omission

•             Lies of commission

•             Paltering or failing to disclose relevant information           

  Several management authors have defended bluffing as “just part of the game of business” and morally permissible because both parties endorse the practice and contend that negotiation simply isn’t possible without it. 

Researchers have studied the consequences of deception in negotiation. Of course, there is the possible short-term economic benefit and possible long-term loss. Deception can result in retaliation. Most assume that deceptions results in a loss of trust. The research has shown it’s not that simple, but that trust may never be restored, after self-interested informational deception, even after apologies and promises of change.

Research has also shown, however, that sales people in stereotypical contexts who engage in self-interested deception are viewed as competent and gain trustworthiness. And, interestingly, people who engage in prosocial deception are more likely to be seen as more moral than those who are actually honest. Maybe that suggests “don’t lie to me about facts that can be verified, but it’s okay to flatter me.”           

Mediation is basically guided negotiation where the mediator may become aware of deception. The mediator is not there to make a decision, but to ensure a fair, competent decision-making process. Which begs the question, should the mediator allow the process to continue with lies based on the assumption that participants expect there to be some made or should the mediator stop the process entirely?