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!



Mediation in “good faith”?

Is there such a concept of mediation in “good faith”?

In the spirit of compromise and resolution, you would think that the parties would be honest and willing to negotiate in good faith. I had a case a while back with the following details.

Party 1: Female about 19 years old, suing to get her personal possessions from an ex-roommate.

Party 2: Father of ex-roommate, family residence. Represented by an Attorney.

Relationship between his daughter and her friend (party 1) soured and party 1 was asked/forced to move out. Her possessions were placed haphazard into the garage of the house. Furniture was scratched and damaged in the moving from the house to the garage.

sheriff-arrestParty 1 came back to the house to collect her possessions and the situation turned angry. Sheriffs’ dept was called and party 1 was given a “no trespass warning” and told not to return to the property, she did a few days later. In lieu of arrest, the officer gave her a ticket and a summons with the date/time to appear was mailed to her last known address (the family house in question). Party 1 never got the summons, never showed in court, and an arrest warrant was issued for failure to appear.

During the mediation, the attorney calls the Sheriffs’ dept to inquire about the active warrant, and to report party 1 participation/location of the mediation. As the mediator, I was just into the first caucus with party 1 when a knock came on the door. (I had just finished the opening statement with both parties and excused party 2 with council). The officer walks into the mediation, tells party 1 to “stand up” and proceeds to arrest her for the active warrant that she did not know was out there.

I asked the deputy if I could continue the mediation with party 1 if he was to remain, but he would be bound by the confidentiality rule. He was unwilling to both wait or be a party to the mediation. So what do I do?

Party 1 was accompanied by an older man who was there as a mentor (he was approx 60). I asked party 1 if she would give the man permission to negotiate on her behalf so we could continue with the mediation.. both she and he agreed.

I attempted to work out some sort of arrangement to collect the items that were still in the possession of party 2, and to come to some dollar figure to cover the damages to the furniture.

The attorney for party 2 was not happy that I was continuing the mediation, and refused to participate any longer. Upon leaving, the attorney said, “make sure you tell the judge that we appeared and attempted to negotiate in good faith”…

Mediation did not settle, but not for the sake of trying!

Just one of the more than 1000 cases that I have had in my career. Just a little food for thought…

Have a great day!


Family Resources

Gail Wadsworth – Clerk of Circuit Court (Flagler County)

Diane Matousek – Clerk of Circuit Court (Volusia County) 

Child Support Calculator

Florida Financial Affidavit (short form)

Standing Family Law Court Order – 7th Judicial Circuit

Timesharing Guidelines – 7th Judicial Circuit

Parenting Course Providers

Juvenile Resources

Florida Department of Children and Families (DCF) Abuse Hotline

Parent’s Guide to Juvenile Dependency Court

Family Guide to Delinquency Court 

Community Partnership for Children 

Department of Juvenile Justice

Juvenile Expungement

Florida Statutes by Sunshine Statutes – (Sunshine States provides the Florida Statutes on one friendly website. This is a public alpha test of the site, which is to say that everything is under active development. Things are funny looking, broken, and generally unreliable right now. The authoritative text of the Florida Statutes is available on the legislature’s website.) for rough house values
NADA (New and used car values)
Kelley Blue Book (New and used car values)
Tax forms