Deception in Mediation

I think that it would be safe to say that in most mediations/negotiations there is some level of “deception” by one or both parties involved. Either a failure to disclose certain helpful information for the purposes of bettering their position, or because they don’t want the subject to be brought up for fear that the issue will not be resolved in their favor.negotiation-ethics-may-be-a-slippery-slope_250w

In the 10+ years I have been a mediator, I have seen this time and time again. Sometimes it is the representing attorney that employs this strategy to the benefit of his client. As a mediator, how do you handle this issue? Some might argue that it is an ethical dilemma, some may just say that it is part of the “game of negotiation”. Whatever your viewpoint of the situation, it is imperative to remember that the neutral mediation should be just that, NEUTRAL. In an attempt to empathize & “gain trust” it can be hard not to have an opinion one way or another about the parties or their position.

My approach is to always present the facts without any personal input or opinion, encourage the parties to “stretch” a little to find compromise and ALWAYS maintain confidentiality. What is said in caucus stays in caucus (unless told to do otherwise). I do make mention in my opening statement when I talk about being neutral, that I may at some point play the role of “devil’s advocate”. During caucus, if an offer is made that I am sure will not be close to acceptable by the other side, I ask the party, “If I was the other Mr. XYZ, what would be my incentive to take the offer you are presenting?” This is done to get them to think outside of the box that they may be in and help them to look at the problem from the perspective of the other side. If both parties are looking at the problem from the others’ perspective, reasonable compromise is attainable and 80% of the time will settle.

I was reading an article about “ethical negotiation” from the Harvard Law School Program for Negotiation, and the writer had an interesting perspective about ethics. I suggest that you check it out if you have a few minutes of “extra” time on your hands.

Have a GREAT afternoon!

Steve

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