Managing Deception During Mediation
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.”?
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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.