In an earlier post I wrote about mediations involving companion animals. I noted that generally in U.S.law, animals are treated as property, and legal issues are based in contract and property laws.

Some recent cases in the U.S point to possible changes to come. For example, in 2018 the group Nonhuman Rights Project sued the Bronx Zoo for the release of Happy, an Asian elephant. The attorneys argued that cognitively complex animals such as elephants should be treated as “legal persons” entitled to fundamental legal rights, including bodily liberty. The court disagreed.

Later, the group sued the Fresno (California) Chaffee Zoo for illegally imprisoning three elephants, arguing they are entitled to habeas corpus rights (the common law principle that allows a prisoner to appear in court to determine whether they are being detained lawfully). The argument is not that elephants are humans but are “similarly situated” to humans for the purpose of habeas corpus.

This argument could eventually lead to calling into question laboratory animal testing, pet companion “ownership” and animal rights to sue. Whatever the limits may become, it seems clear that U.S. law may eventually recognize that animals have rights too. Then, the next logical step is that an animal could not only be the subject of a mediation, but also one of the parties.

I wish to acknowledge an Op-Ed by Nicholas Goldberg in the Los Angeles Times for the source of some of the information above.

Mediators and negotiators at some point have to deal with deception. It’s not a simple question as most would agree that there are different forms of deception and many contend that it’s an expected and necessary part of negotiation. 

Deception can be acts of omission, commission, or paltering. Omission refers to failing to disclose relevant information in contrast to commission, which is actively making false statements. Paltering involves making carefully worded truthful statements intended to deceive without telling a lie. 

The argument is made that deception and misrepresentation, such as bluffing, are an acceptable tactic in negotiations. At least one Supreme Court ruling addressed bluffing in labor management negotiations. The Supreme Court established the “honest claims” requirement for claims concerning bargaining topics, but claims about issues not the subject of the bargaining, are not covered by that ruling. Thus, statements about wages, hours and conditions of employment must be truthful, but statements, such as the size of the union’s strike fund, can be bluffed. At least one management scholar has argued that bluffing in poker and business negotiating is morally permissible because the parties endorse the practice and further argues that negotiation cannot be successful in these settings without it. 

Likewise, an interpretation of the American Bar Association’s Model Rule of Professional Conduct is that it does not prohibit all deception. It does prohibit lying about material facts or law, but an attorney generally has no “affirmative duty to inform an opposing party of relevant facts.” 

I admit to telling people learning mediation to assume that people lie, bluff, and otherwise attempt to deceive the other party during sessions. Because mediation is generally confidential, many participants may perceive little risk to attempt deception as they negotiate with the other party.

So what should the mediator do when she knows one participant is lying? The mediator’s role is not one of a fact finder nor of judge. The mediator deals with the information the parties choose to reveal, truthful or not. The mediator’s role is to manage the communication between the parties. The mediator may assist the parties individually as to what information should or should not be shared, but may reframe statements in ways that make them more understandable and acceptable to others. The mediator may also filter the communication between parties.

Through management of the communication between parties, the mediator has an inordinate level of influence, but is not in the role of truth finder.