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Who ME? Manipulate? Negotiating Impartiality in Mediation

I was reading a great article in the New York Times this morning about "blue sky" transparent diplomacy in light of Obama's Cairo speech and was intrigued by the phrase "constructive ambiguity" in international diplomacy.

The full Obama-Cairo Speech below:

Check out Experts Say Full Disclosure May Not Always Be Best Tactic in Diplomacy.  While citing the importance of back channel communications, the author quotes "one of the nation's most experienced career diplomats and former under secretary of state"  as identifying the two "home truths" in international diplomacy:

One is, don’t tell lies. The other is, you can say more in private than you can in public, but they have to be consistent.

This brought to mind not simply the one or two memorable instances in which I caught mediators in deception during my litigation practice, but a recent experience communicated to me by a friend about one of those $15/K a day mediators.  I ask for the full 411 on these mediations because I'm intrigued by the value $15K/day buys.  Here's the story.

My friend called me during a recent mediation to tell me that his mediator had just left the room after leaving this message with his "team."

Your opponents just asked me to make a mediator's proposal of $X.Y million.

Assuming that this disclosure was not a breach of confidence, I had to ask myself whether it was simply a (manipulative) hypothetical "offer" approved by the other side in form and content that the other side could safely disown.  In either case, I felt it was (a) unethical - i.e., a breach of confidence; or, (b) partial (not neutral, which is also unethical).

Someone could likely talk me down off the ledge on this one but I'm having trouble seeing it as permissible mediator behavior.   Assuming it wasn't a breach of confidence, it raises the question whose ox is being gored here?  How much manipulation by the mediator is acceptable - is ANY manipulation acceptable and if the mediator is manipulating, is it POSSIBLE for him/her to do so without also being PARTIAL?

I have "caught" mediators in deception during my practice (and have not been quiet about my experience).  In case mediators do not recall legal practice, let me remind them that counsel talk to one another and despite our differences usually trust one another more than we trust our mediator.  If you lie to one of us or disclose something you shouldn't be disclosing, don't let the separate caucuses in which the mediation is taking place mislead you about the state of "play" in the litigation.  If the mediator is dishonest, will be found out.

If we do not hold ourselves to the absolute HIGHEST POSSIBLE ethical standards, our credibility, and our careers, are seriously at risk.

Would any of my fellow mediate.com bloggers like to weigh in on this?  Geoff Sharp, Jeff Thompson, Phyllis Pollack, Stephanie West Allen, Nancy Hudgins, Colin Rule, Tammy Lenski, Josh Weiss, Jan Frankel Schau, Jeff Krivis, Mariam Zadeh, John DeGroote, Steve Mehta, Arnold Zeman?

Comments (5)

Read through and enter the discussion by using the form at the end
Tammy Lenski - June 7, 2009 4:09 PM

I'll weigh in Vickie. I think things like this are (a) shameful and (b) unlikely to change for a certain portion of mediators.

Why don't I think those mediators will change unless someone makes them? Because they're driven by one thing: Settlement. And if one is driven only by settlement, then it's an easy and slippery slope to "by any means possible."

Your story reminded me of a story I heard about another $15k/day mediator, this one in Boston. He showed up, made his opening statement, disappeared for HOURS. By the time he came back, the attorneys had worked out an agreement, which he happily wrote up. One of the attorneys on the case later found out the mediator had been doing a second mediation that day, while he was missing in action from the first mediation. $30K day. Not bad for a mediator who did almost nothing. I asked the attorney if she'd hire him again and she said yes. I almost fell out of my seat. Why? Because his name is equated with settlement and she wants to signal to some clients that they're going to reach settlement that day come hell or high water. Or, apparently, mediators who only know how to make an opening statement and write up an agreement.

What a pathetic system we have that someone can get away with these behaviors and have an abundance of work waiting for them. Capitalism at its best and worst?

Shameful, absolutely shameful. And shame on our field and our professional organizations for twiddling our thumbs while these things are going on.

michael webster - June 7, 2009 5:44 PM

I would start my analysis differently.

1. I would assume that the mediator was not breaching confidence and had been instructed to phrase the offer exactly that way. I would confirm this.

2. I would then have asked questions about why the mediator was telling me this, as opposed to simply making the offer. (I would expect little information from this, but it would give me time to think.)

3. Then, I would try to think why someone wanted me to know what ordinarily would be confidential. I would not settle for one or two explanations, but rather want 5 plus and continue the mediation with all 5 plus in mind.

Vickie - June 7, 2009 5:51 PM

Thanks for the comments Tammy! But really -- don't hold back.

It's frustrating that appearance is often so much more important than reality. There is a LOT of face-saving and job-protection going on in the 9-figure case.

One case comes to mind - a 9-figure demand that could have been settled for the low 7-figures WITHOUT neutral assistance had I been authorized to offer something greater than $X (7-figures with more than a "1" in front of it).

Tick tock tick tock.

Up to the appellate court and back again.

Tick tock tick tock.

Interim tactical victories that "smell like napalm" in the morning but are of little use if the Court won't step up to the plate and grant your (at least partially) dispositive pre-trial motions (Judge: "I can't rule on your evidentiary objections; there are too MANY of them").

Tick tock tick tock.

The client wants the litigators to become ravenous, focused trial warriors. Why SHARE the actual long-term game plan with your troops or even your Generals when the Pentagon is using all of them like toy soldiers on a child's counterpane?

Tick tock tick tock.

"We need you to find the lawyer with the magic settlement bullet."

Ah, a magic settlement lawyer!! I didn't know they existed until he rode up on his horse, displaced my trial team and racked up a few million in monthly attorney fees doing that which the client had instructed him to do: SETTLE THE CASE NO MATTER WHAT; spend what you want to PRETEND to go to trial.

Result? An 8-figure settlement with a mediator still crowing about his prowess with a client who would likely have gone into the 9's to settle the case in the absence of any member of the original litigation-trial team that might have confused matters with the MERITS.

To put this settlement into perspective, the defendant with the most significant exposure had settled six months earlier for 7 figures with a "1" in front of it.

Whose ox was gored here? The shareholders? Or was this litigation and settlement "small" enough not to make an actual difference to anyone but the people who'd let it go sour over time (as 90% of all litigation eventually does).

And the mediator? He too was just a pawn in a far larger game being played on terms known only to a few insiders.

In a world like that, everyone probably gets more or less what they deserve.

Vickie - June 7, 2009 6:02 PM

Michael,

OK, I'll play this out with you. Let's assume that my friend (who actually said something along the lines of "I won't play that game") had instead asked "did the defense authorize you to tell us that?"

Mediator: "I can't say, it's confidential."

Attorney: "Do you see a tactical advantage to our responding hypothetically? In other words, what is your opinion about the wisdom of telling them we asked you for a mediators proposal of $Y.X (assume this is at least seven figures greater than the other side's mediator proposal inquiry).

Mediator: (I'm making a TON of untestable assumptions here): "I don't think that would be wise but you might authorize me to tell them that you wouldn't accept a mediator's proposal less than, say $500,000 more than the one they solicited." Etc., etc.

We are way down the slippery slope here of the mediator "neutrally" (?) assisting both parties in deceiving one another.

Good thing?

Elizabeth Jackson - June 19, 2009 11:11 PM

What I see being tested in these scenario's are the 3 main components of any mediator : 1. neutrality, 2. impartiality and 3. integrity (mentioned last, but certainaly not the least).

All 3 of these qualities are linked very intricately. If the mediators contractual pay is set at whatever amount, then the focus of the mediator should be that the performance of their job is given at 150% of what the mediator agreed to accept. This should somewhat make allowances for the mediator to keep their neutrality in line.

When the mediator faces no possibility of any further gain, then their outcome is vested and impartiality should have no probable reason to fall out of line.

More so than neutrality being questioned here, I see integrity being challenged. What kind of mediator agrees to an amount for a mediation, schedules two mediations at the same time, or disappears for hours, not being present during the mediation, does not even "work" through the process with the clients who hired them and expects to keep their pay? (wow, I certainly hope they can walk on water!)

To me, this is what opened the door to serious allegations. Not just for the mediator that does this kind of thing, but also serves as a reflection on mediators everywhere.

What is at stake here is too much to handle in one post. Mainly, my concern here is that if it becomes allowable to question the mediator as to who said what and by what authority, then more challenges are down the road in regards to maintaining the right of a mediator's confidentiality. By the same token, actions such as these will cause suspicions to take place and in eventuallity we will lose valuable quality in mediation such as public trust as well as client trust.

There is a danger for every mediator to become a "pawn" in a game of deceit. One of the primary components of integrity is the ability to recognize where a line is, and not cross over. Does everyone have that ability? Perhaps not. Inexperience can be a setting for an extreme bruising. On the other hand, ego causes one to ignore the signals. It is up to every mediator to either know the difference or learn it.

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