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The Question is Not WHETHER But HOW MUCH Your Mediator is Deceiving You

I spent the day at an advanced mediation training session at the U.S. District Court in Los Angeles where I serve as a settlement officer. I came away troubled by the wide array of responses to questions concerning the mediator's "right" or "desire" or "need" to use deception in separate caucus mediation - the primary form mediation takes in Southern California litigated cases.

At the end of our session, I suggested to a fellow mediator that all separate caucus mediation is inherently deceptive. He is a sophisticated practitioner and knew exactly what I meant. My husband - a litigator of 35 years who is also (newly) on the District Court's Settlement Officer panel - recoiled at the idea.

Here, for your consideration, is an excerpt from a lengthy discussion of the issue from the Journal of the DuPage County Bar Association -- Defining the Ethical Limits of Acceptable Deception in Mediation by JAMS mediator the Hon. John W. Cooley (Ret.) 

[C]onsensual deception is the essence of caucused mediation. This statement should not come as a shock to the reader when it is considered in the context of the nature and purpose of caucusing. Actually, it is quite rare that caucused mediation, a type of informational game, occurs without the use of deception by the parties, by their lawyers, and/or by the mediator in some form. This is so for several reasons.

First, a basic groundrule of the information system operating in any mediated case in which there is caucusing is that confidential information conveyed to the mediator by any party cannot be disclosed by the mediator to anyone (with narrowly limited exceptions). This means that: (1) each party in mediation rarely, if ever, knows whether another party has disclosed confidential information to the mediator; and (2) if confidential information has been disclosed, the nondisclosing party never knows the specific content of that confidential information and whether and/or to what extent that confidential information has colored or otherwise affected communications coming to the nondisclosing party from the mediator. In this respect, each party in a mediation is an actual or potential victim of constant deception regarding confidential information — granted, agreed deception — but nonetheless deception. This is the central paradox of the caucused mediation process. The parties, and indeed even the mediator, agree to be deceived as a condition of participating in it in order to find a solution that the parties will find "valid" for their purposes.

Second, mediation rarely occurs absent deception because the parties (and their counsel) are normally engaged in the strategies and tactics of competitive bargaining during all or part of the mediation conference, and the goal of each party is to get the best deal for himself or herself.

These competitive bargaining strategies and tactics are layered and interlaced with the mediator’s own strategies and tactics to get the best resolution possible for the parties — or at least a resolution that they can accept. The confluence of these, initially anyway, unaligned strategies, tactics, and goals creates an environment rich in gamesmanship and intrigue, naturally conducive to the use of deceptive behaviors by the parties and their counsel, and yes, even by mediators. Actually, even more so by mediators because they are the conductors — the orchestrators — of an information system specially designed for each dispute, a system with ambiguously defined or, in some situations, undefined disclosure rules in which the mediator is the Chief Information Officer who has near-absolute control over what nonconfidential information, critical or otherwise, is developed, what is withheld, what is disclosed, and when it is disclosed. As mediation pioneer Christopher Moore has noted: "The ability to control, manipulate, suppress, or enhance data, or to initiate entirely new information, gives the mediator an inordinate level of influence over the parties."

Third, the information system manipulated by the mediator in any dispute context is itself imperfect. Parties, rarely, if ever, share with the mediator all the information relevant, or even necessary, to the achievement of the mediator’s goal — an agreed resolution of conflict. The parties’ deceptive behavior in this regard — jointly understood by the parties and the mediator in any mediation to fall within the agreed "rules of the game" — sometimes causes mediations to fail or prevents optimal solutions from being achieved.

Thus, if agreed deception is a central ingredient in caucused mediation, the question then becomes what types of deception should be considered constructive, within the rules of the mediation game, and ethically acceptable and what types should be considered destructive, beyond the bounds of fair play, and ethically unacceptable. Or, perhaps more simply, in the words of mediator Robert Benjamin, in mediation what are the characteristics of the "noble lie" — deception "designed to shift and reconfigure the thinking of disputing parties, especially in the conflict and confusion, and to foster and further their cooperation, tolerance, and survival"? Because formal mediation is generally viewed as "nothing more than a three-party or multiple-party negotiation," we can begin to formulate an answer to this question by examining the current limits of acceptable deception as employed by lawyer-negotiators.

New Zealand mediator Geoff Sharp blogged on this topic under the rubric "noisy disclosure" recently, noting that

Mediators can assist parties in reaching a zone of possible agreement by making limited and heavily filtered disclosures of the parties’ private concessions that the parties disclose in caucus sessions (Brown and Ayres call this “noisy” communication).

See my own short post on mediator predictions and false signals here

 I urge all my readers to comment, but particularly litigators like my husband who may not know what many mediators have apparently known for quite some time -- that they are making "filtered disclosures of the parties' private concessions" after promising to keep all separate caucus communications strictly confidential.

My husband assured me on the way home tonight that he will henceforth require all of the mediators he retains to guarantee him that they will not "signal" his negotiating positions, tactics or strategies to his bargaining partners.

Your thoughts?

Comments (5)

Read through and enter the discussion by using the form at the end
John Lassey - April 30, 2009 7:10 AM

Although I have never used the term "filtered disclosure," I think it does accurately characterize what most mediators do. If they did not, I think they would risk becoming mere carriers of information back and forth between or among the parties; i.e., puppets, with their strings being pulled remotely from the other room(s). The deception inherent in such a situation would come about from the fiction presented to the other side(s) that the mediator is independent. In truth, if the parties want to thus program (or "game," if you will) the mediation, they might as well dispense with the mediator and negotiate directly with each other!

I try to limit the so-called "deception" aspects of "filtered disclosure" by telling everyone up front that if they want me to consider any communications in caucus as confidential, they must specifically ask me to do so; otherwise, I will use my judgment as to how much, if any, to disclose to the other side(s).

I have only recently added a feed from your site, but wish I had done so sooner. Your posts are nearly always timely and provocative. Keep up the good work.

Gavin Craig - April 30, 2009 9:48 AM

This a very interesting post. The mediator wants to get the case settled. The parties have not been able to resolve the dispute using the "facts" as they know them. So what is the mediator to do but emphasize some dire result if a party does not settle. (i.e. It will cost you $x to litigate and the other side has some excellent points, or has no money, or some other issue.) Until I read your post I would not have called this deception, but it many times is.

I don't characterize the fact that the mediator has some confidential information as deceptive. After all, the mediator tells both sides they can disclose information in confidence, and that's an important tool for the mediator.

I have never thought that a mediator told me and my client a direct lie - but it could have happened. I guess my point is that characterizing the meditation process as inherently deceptive is, I think a disservice. Sometimes the truth needs to be stretched a little to get parties to agree, but how is that different than any negotiation?

Vickie - April 30, 2009 11:40 AM

Thanks to both Gavin and John for your insightful comments. It is a slippery slope and one I'm not certain our clients understand we are perched upon.

Telling our clients in separate caucus that we will use our discretion to disclose anything we believe to be useful unless they expressly direct us otherwise is a great way to handle the ethical problem of signaling, telegraphing, predicting or tipping one party's hand to the other.

However, given the demonstrated fact that the most significant factor in predicting negotiation outcome is what Party A BELIEVES Party B's bottom line to be, we mediators must be mindful of the impact our predictions and noisy disclosures will have on the parties' ability to negotiate the best possible deal for their client.

As Peter Robinson, co-director of the Straus Institute often asks, "how big a finger print are you willing to leave on the outcome?"

Here are a few common questions along the slippery slope I'm routinely asked by parties in separate caucus:

1. What's the temperature in their room?
2. Who's creating the impasse over there - the client or the attorney?
3. If I offer $X, what do you think their counter will be?
4. Do you think they'll go above/below 6, 7 or 8 figures?
5. If I offer $1.2 million can you guarantee me that they'll accept it?
6. What is their bottom line?

I was consulting with a client recently about an on-going mediation impasse (yes, attorneys do hire mediators as advisors if the numbers are high enough) and was advised that the mediator had this to say of my client's opponent's position during the final failed session: "He's at $25 million now, but I believe he'd be willing to come below that, maybe into the low 20's and there's some chance you could settle it for $19.5."

I had several comments to this prediction by the mediator. First, I don't believe any mediator would use as precise a number of $19.5 unless that number had been discussed -- and discussed favorably -- in the other room. Second, you have no guarantee that the mediator floated that number with your opponent's permission.

Given the width of the delta between the $25 million on the table and the predicted potential $19.5 settlement, I'd personally be surprised if this disclosure was one approved by the parties in the other room. That being the case, I'd assume that the mediator was similarly telegraphing my client's predicted bottom line to the other side. If that was OK with my client, all well and good. If not, it might be time to part company with the mediator (or even take a mediation vacation from him) while my client re-anchors the negotiation at a number he WANTS to be at rather than one the mediator has signaled he is actually at.

Not using actual numbers to protect confidentiality, I will tell you that my client's client was willing to settle as high as $17.5 (but preferred to settle for $16) and had put only $10 million on the table.

The ACTUAL delta between party offers and counters was therefore an unbridgeable $15 million. If my client were to credit the mediator's "prediction" that the other side would be willing to go as low as $19.5, the ACTUAL delta between the parties was only $2 million -- a number the parties could no doubt bridge through further negotiation.

Based on the comments of several mediators at the training yesterday, many would have had little hesitance to telegraph or predict these two bottom lines for the purpose of settling the case even if they didn't have the clients' permission to do so.

My questions are these (among many others): are the PARTIES willing to have the mediator do so? If not AND if the mediator has promised confidentiality in separate caucus, is the mediator violating the parties' trust and confidence? Is the mediator violating professional ethics? Is the mediator leaving too big a finger print on the outcome, i.e., has he placed his thumb on the scale and, if so, has he done so impartially, "omni-partially" or in favor of the party whose case he most favors or, worse, the party he responds to most favorably.

If the true delta genuinely is between $17.5 and $19.5 and the parties are having trouble getting there, I believe there are far better ways to assist them in reaching a mutually agreeable settlement than "gaming" them or helping them to "game" one another, always remembering that the parties are "gaming" the mediator as well.

Is this the best our profession can do? I think not. More thoughts on this in my next post.

Jan Schau - April 30, 2009 9:40 PM

I also attended the training and came away with a different, more liberating sense of a mediator's duty to tell the truth (or deceive). The negotiation posture and the bartering back and forth is not deceptive, but is more like a flirtation where all parties expect some degree of coyness and a lack of full disclosure. Until you've entered into a deal, factual (evidentiary) secrets must be strictly guarded, but posturing in negotiation always involves some degree of bluff and puff. Until you reach that "last, best and final" (which is often not that either), your carrying a message between two conflicting parties is, in my opinion, only that.

Tolliver - January 6, 2011 12:43 PM

"These competitive bargaining strategies and tactics are layered and interlaced with the mediator’s own strategies and tactics to get the best resolution possible for the parties — or at least a resolution that they can accept. The confluence of these, initially anyway, unaligned strategies, tactics, and goals creates an environment rich in gamesmanship and intrigue, naturally conducive to the use of deceptive behaviors by the parties and their counsel, and yes, even by mediators. "

What is to be done to protect yourself from the deception of the mediator? because in the end, it is by their advice, believing that they have your best interests at heart, that you make your decision. Perhaps that's too trustful of a way to look at it. I am in a situation where I believed that I was accomplishing what I desired by omitting it from the mediation discussion, and was advised by the mediator that it would have the same effect without stirring the bee's nest. I've come to find out, that was legally unsound advice, and the mediator denies he would ever make such a claim. Since I have no evidence that I was advised in such a manner, there is no action I can take, and I'm left with an inferior position in the agreement because I followed what the mediator said would accomplish my goal. Can you take recording devices in with you when you caucus with a mediator? What is in place to prevent the malpractice or bad advice of a mediator, when by his or her counsel and advice, you may end up with an undesireble result?

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