|ALL SECTIONS | ABOUT MEDIATION | Civil | Commercial | Community | Elder | Family | ODR | Public Policy | Workplace|
Subscribe to the Mediate.com NewsletterSign Up Now
The Usual Suspects (1995), is a movie of the film noir genre about the thin line between illusion and reality. The story line is a botched drug heist as the pretext for the examination of authenticity and deception among and between the suspects and the police. Little is what it appears to be at first blush. It carries the updated texture of Kurosawa’s Rashomon (1951). Both films are essentials for the well-viewed negotiator, who must grapple with such ambiguities day in and day out.
Be it in a game of poker, politics, personal relationships, or professional dealings, one is effective player or performer in direct correlation with their ability to present themselves as authentic. Trust, integrity and most other noble virtues are gauged by the appearance of authenticity----so, ironically, is the ability to effectively deceive or “con” someone. Being and appearing authentic, are neither the same thing, nor simply obtained. Some people are truly genuine of motive and truly are authentic yet not the slightest bit believable. Others, can appear completely trustworthy and are wholly undeserving. The later could sell you a bridge in the desert and convince you “to believe them and not your own lying eyes.” There is considerable evidence to suggest that few of us can tell the difference between the genuine and the imitation---who is lying and who is telling the truth. Many sales pitches and advertising gimmicks take the fullest advantage of this confusion. A scam is called a confidence game precisely because it is fundamentally reliant on gaining the ‘marks’ trust and confidence in order to defraud them. A good amount of consumer protection law is the result of legislative wrangling over where to draw the legal line between simple puffery and outright fraud---between tolerable misrepresentation and acts that are considered beyond the pale and subject to civil or criminal sanction. (Leff, 1976)
Judges, lawyers, mediators, and negotiators, likewise try to read the signs of each other and their clients in order to estimate the level of ‘good faith’ or ‘bad faith’ exhibited. Each party examines the others motives, intent, and behaviors. Much of this surveillance is based on the appearance of authenticity. Yet, as most experienced negotiators will attest, good faith can be a ruse and what appears to be bad faith may not be what it seems or may change.
Many people find negotiation distasteful for the very reason that the process is murky and without clear, simple and prescriptive boundaries. No one wants to be played for a fool, yet historically, negotiation has always been understood as an activity replete with calculated manipulations, necessary deceptions, and sometimes intentional mis-representations. (Callieres, 1716) Therein lies the paradox: everyone negotiates sometimes; to be an effective negotiator requires a good measure of authenticity and sometimes the ability to merely appear authentic. Authenticity, while anchored in genuine integrity, might at times be part ruse. That accounts for why people who negotiate regular part of their work----car salespeople, lawyers, politicians---suffer low prestige and are tolerated only as a necessary evil.
Negotiation is disliked because it exposes the gap between the ideal---what people feel is the right, fair and just result---and the acceptance of a less than ideal practical reality. In theory, agreements and decisions should be based on true and accurate information, in fact, they are seldom clear, entirely rationally based, or even satisfying. Negotiation is disconcerting process for some because the quest for the truth is the first casualty; finding the truth, were it even possible, is not the purpose of negotiation. It is rather, about people surviving and managing a conflict as best they can based on the best presently available information---even if that information is flawed.
This circumstance often sets up a common but disturbing dynamic: people know on some level they are being lied to or conned, yet necessarily suspend their disbelief and ‘buy into’ the lie, only to become angry when they later ‘discover’ they have been conned. People may even invite and betray a desire for illusion or to be allowed their self-delusions as a hedge against a too-harsh reality. The ultimate myth accepted by many people in our ‘techno-rational’ culture, is the belief that there is a right answer to solve every problem and that the professionals or experts (e.g. doctors, lawyers, judges, et.al), know best and have or can discover those answers and allows. Negotiators and mediators would not be effective in their use of deceptions unless people wanted to be deceived. The same premise underlies a well preformed magic trick, the appeal of a great work of fiction in literature, or the script of a movie or play in the theatre. The audience must be a willing participant and to a greater or lesser extent, suspend their disbelief. (Benjamin, 2002)
The sleazy nature of negotiation clashes with our cultural operative mythology. A myth is not a lie, nor is it the truth, but rather a common story we tell ourselves to make sense of the world around us. The prevalent “myth of justice”, for example, holds that if you are honest, authentic, and right, then you need not pretend and certainly need not compromise your beliefs by negotiating. John Wayne was the incarnation of the myth; he was not only a movie star, but was and remains a cultural icon. In his roles he proudly and stubbornly never negotiated. For some, the idea of negotiating is synonymous with deceit, lack of principle, and even moral flabbiness; if you negotiate you’re in league with the Devil. Satan is the archetype of a negotiator; he negotiates for your mortal soul. (Benjamin, 1998)
Because authenticity is integral to effective negotiation and mediation, the origins and meaning of notion needs to be carefully examined and parsed. While authenticity requires some measure of honesty, it is not necessarily congruent with being scrupulously honest all of the time. While authenticity is essential to build trust, it may well be that people recognize that they may need to be deceived and expect and tolerate some measure of artful sleight of hand to help them manage. The authenticity quotient for a negotiator or mediator is not a simple calculation of commitment to the recognition of other parties or truth and honest. It is more complex; authenticity is gathered from a confidence that there is a determined commitment to reaching an agreement, not at all costs, but even in the most adverse circumstances, and that the other people involved will not be taken for fools.
Benjamin, R.D. “Negotiation and Evil: Moral and Religious Resistance to the Settlement of Conflicts” Mediation Quarterly, San Francisco: Jossey-Bass, Publishers, Vol. 15, pages 245-266, 1998.
Benjamin, R.D. “Mediation as Theatre and Negotiation as Performance Art”, www.mediate.com, 2002; Assoc. For Conflict Resolution, Family Section News, 2002
Callieres, Francois de, On the Manner of Negotiating With Princes, New York: Houghton Mifflin Company, (1716) 2000.
Leff, Arthur A., Swindling and Selling, New York: The Free Press, 1976.
Robert Benjamin, M.S.W., J.D., has been a practicing mediator since 1979, working in most dispute contexts including: business/civil, family/divorce, employment, and health care. A lawyer and social worker by training, he practiced law for over 25 years and now teaches and presents professional negotiation, mediation, and conflict management seminars and training courses nationally and internationally. He is a standing Adjunct Professor at the Straus Institute for Conflict Resolution of the Pepperdine University School of Law, at Southern Methodist University’s Program on Conflict Resolution and in several other schools and universities. He is a past President of the Academy of Family Mediators, a Practitioner Member of the Association for Conflict Resolution, and the American Bar Association’s Section on Dispute Resolution. He is the author of numerous book contributions and articles, including “The Mediator As Trickster,” “Guerilla Negotiation,” and “The Beauty of Conflict,” and is a Senior Editor and regular columnist for Mediate.com.