Secrets And Lies: The Ethics Of Mediation Advocacy And Scrabble


by Jan Frankel Schau

February 2006

Jan Frankel Schau

You wouldn’t believe what the attorney told me in last week’s mediation. You wouldn’t, and you shouldn’t: because it was a Lie. What do you do when you are confronted by the scenario in which you suspect either your client or the opposing attorney are lying in the name of “mediation advocacy” to gain advantage in the negotiation? It is the tough moment where the duty of attorney-client confidentiality collides with the ethical considerations of truthfulness in negotiation.

How do you respond?

From the perspective of the mediator, the first task would be to discern whether the “lie” is a bluff (little lie), a secret (which may become a lie if not kept strictly confidential) or a BIG LIE. By way of analogy, my son and I enjoy a good game of Scrabble while on vacation. Once in a while, because he’s so charming and clever, I let him get away with putting a word down that I’ve never heard of, and that he can’t define. He is, nonetheless, sufficiently conversant with Dictionary.com to convince me that the word legitimately exists in the English language. The trouble is: I can’t use it to build upon. I can’t add a suffix, to make it a past tense. I can’t add an “ing” to make it a present, progressive tense. And often times, I can’t even add an “S” to make it plural.

Like a “Lie” in a mediation, once a false word is laid down on the Scrabble Board, it can often confound and impede the progress which creates the flow of the game or negotiation, creating frustration or even impasse. While a secret (like a plan to set up a triple word score in Scrabble on your next turn) is an excellent tool for advocates, a LIE (like cheating by using a non-word) just impedes the negotiation.

Using “Secrets” is Acceptable as a Tool for Negotiation

Most every mediation begins with a promise by the mediator to maintain confidential communications. These typically consist of one or two types of communication: yet undiscovered facts, and/or negotiating posture, case valuation and limits on client authority.

For example, a defendant’s desire to end litigation charging him with sexual harassment “as early as possible” in order to alleviate ugly claims which might be brought to the attention of his wife in a soon to be pending marital dissolution, is surely something the mediator would not voluntarily reveal to the claimant, yet a critical tidbit of information to aid in her understanding of the parties’ “interests” in the outcome of the litigation. This is a prime example of an undiscovered “fact” that affects the outcome of the mediation, but should not be revealed by the mediator. It’s a secret, but not a lie.

A physician’s urgent desire to settle a case below Medical Board reporting limits, to avoid investigation or reporting, even if it means paying some portion of a settlement “under the table”, is another example of a typical “secret”, which mediator’s are asked to keep confidential, and generally honor. Any knowledge of other claims against the physician should never be revealed. They are secrets, even though failure to reveal them, if asked and answered in formal discovery or at trial would be a lie.

The lawyer’s lack of faith in his own client, and his confidential intent to substitute out if the case doesn’t settle at his recommended value at the mediation, is another instance of a “secret” communication which may be revealed to the mediator, but otherwise kept confidential. This kind of “bottom line” communication is a typical “secret” which mediator’s find acceptable as a tool for negotiating.

Secrets are not only expected, but respected in a very different way than lies. A mediator is expected to maintain secrets, but if questioned should not lie to protect their secrecy. Instead, for example, if asked if there are any prior accidents, should simply refuse to reveal any information. If, instead, the mediator states: “not that I know of”, the mediator is participating in a lie. This can backfire, and destroy the mediator’s credibility at the same time. Nonetheless, this type of secret is invited and usually useful to the mediator. Make sure, however, that you trust your mediator not to reveal this type of “secret” to your opposing side.

There is a distinction between little, useful lies, aka bluffs, and BIG LIES

If pushed, most professional mediators will admit that they tolerate, even expect some bluffing in the negotiation phase of a mediation. I refer to these as “lies” with a lower case “l”. Indeed, many mediators admit to employing this means of cajoling the parties into agreement themselves. “I feel pretty sure that if you just raise your offer by $10,000., he’ll come down under six figures.” The problem and discomfort comes when either a factual misstatement is made or the settlement posture is misrepresented. These are what I refer to as “Big Lies” that get in the way of earnest negotiation.

The typical bluff, or “lie” comes in the posturing that goes along with the negotiation. In many mediations, you reach a point where one side or the other declares (boldly, never secretly): “We’re leaving if they won’t take/give $X. They’re wasting our time”. Most mediators understand this to be a bluff, and most of the time it is, until it is not.

Contrast that “lie” with this “LIE”: Defendant informs the mediator that in medical records, Plaintiff was found to have a pre-existing condition in her back, which looks like the same type of injury which is involved in this accident. This implies a pre-existing condition based upon medical evidence, but indeed is a BIG “LIE” at this juncture of the lawsuit. There was no actual diagnosis of a pre-existing condition in the same area of the Plaintiff’s back in any record Defendant has been able to obtain.

Lying about the facts and evidence is not only unethical, but gets in the way of realistic progress towards settlement as much as putting a made up word on the Scrabble Board. When confronted with this scenario, you may find the professional mediator takes you or the party proffering the LIE aside and informs him of the dire consequence of putting the LIE out to the other side without corroborating evidence. Better to convert it to a “secret” which can be hinted at, but never revealed, than to allow a false statement to be made and then hope to work around it to achieve a settlement.

From these examples, it’s apparent that “lies” with a small “l” are “acceptable” practice, including lies based upon opinion, creative ideas and professional evaluations. “LIES” with a capital “L”, based upon facts which are claimed, but not substantiated by evidence, are unacceptable and should be avoided, even in the zealous advocacy of a heated mediation.

Obviously, there are plenty of gray areas where a “lie” may not be a “LIE” and where a “Secret”, if taken too far, may turn into a “Lie”, but tread lightly and use caution. Employing “LIES” more often derails mediation than promotes settlement. Paraphrasing an old Confuciousism, “Better to remain silent and be thought a fool than to speak falsely and remove all doubt!”



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Biography




Attorney Jan Frankel Schau is a highly skilled neutral, engaged in full-time dispute resolution. Following a successful career spanning two decades in litigation, she has mediated over 700 cases for satisfied clients. Ms. Schau understands the nuances of trial and settlement practice as well as client relations and balancing the needs of their representatives with the risk and expenses of trial. Those who have used Ms. Schau’s services recognize excellence in her persistence, optimism, creativity and integrity.

Ms. Schau was the President of the Southern California Mediation Association in 2007 and is recognized as among the most outstanding mediators in Southern California in the mediation of civil disputes by her peers and clients. She also serves as a Trustee of the Board of Directors of the San Fernando Valley Bar Association, and has presided as Chair of it’s Alternative Dispute Resolution Section and Litigation Section. She holds a Certificate of Advanced Skills in Negotiation from the Straus Institute for Dispute Resolution of Pepperdine University as well as from the Western Law Center for Disability Rights at Loyola Law School.



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Website: www.schaumediation.com

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