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?

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.