This week I attended a professional conference where I heard two compelling presentations. The first was on "The Ethics of Negotiation". First, was a thought provoking discussion presented by my colleague, Michael Young, an attorney and mediator here in Los Angeles and former Federal District Judge John Wagner, also now a mediator. The central thesis was that lawyers and negotiators need to use caution and discretion lest their puffery and strategic communication be relied upon as false facts. In California and the U.S., there's broad leeway in using exaggeration or puffery and also manipulating the timing and "bottom line" claims in the context of the litigated case. The only bright line offered seems to be the conduct which would otherwise be actionable as a material misrepresentation of fact.
The following day, the keynote address was delivered by Tony Snow, former Press Secretary to George W. Bush. He spoke of the invasion in Iraq, the surge in troops against popular tide of approval and, in an unabashed claim, his deft management of creating an appearance of the wisdom of staying in the Middle East even in the face of unprecedented negative ratings.
So it occured to me, that in the case of a difficult negotiation, the mediators role in so many instances is to create the spin that will sell the other side on reasons to accept a deal they were unwilling to accept before they engaged the mediator. What's more, the mediator will not likely present facts which will be relied upon (or rejected as untrue), but will merely "reframe" those details which she believes the parties need to highlight in order to make an informed decision about the best outcome they can achieve in the particular negotiation. What's more, the mediator's communication to the parties is confidential, and therefore not actionable. Mediators have ethics, too and won't lie for either party or knowingly present facts which are false. But they certainly will withold facts which they are asked to maintain as confidential!
During the course of this week, for example, I negotiated a re-finance of a home, a claim for attorneys fees rebated, a personal guaranty on a business debt and the proceeds of a fire insurance policy. Each of these negotiations were already attempted before filing a lawsuit and after...but it was only with the benefit of the mediator's "spin" that, like a Press Secretary, the parties were able to see the wisdom in an unpopular war based upon carefully chosen words and artful intervention. Like a figure skater, parties to a negotiation are well advised to bend as far as possible without causing a crack in the ice or skater!