half-truths. It is trying to treat them
as whole truths that plays the devil.
Alfred North Whitehead,
Do mediators tell lies? Of course not. Do mediators always tell the truth? Of course. Do mediators always TELL? Don't bet on it.
Do the parties' legal advocates never tell lies and always tell the truth? Weell. At least one leading mediator and trainer offered this advice to some neophyte mediators: "Don't believe anything a lawyer will tell you during a mediation!"
Truth and lie are, in one sense, opposites. But there is a huge gray area in between, an area that abounds with embellishments, hyperboles and personal affronts - all too often calculated to achieve nothing more than angry and nonconstructive responses. The 4th DCA in State v. Marks, et al., 758 So.2d 1131, hit it squarely on the head: "These settlement communications are a dance of nuance and strategy, of cajolery and intimidation, of exaggeration and minimization."
Bruce Fraser, in his excellent article, "The Neutral as Lie Detector" (Dispute Resolution Magazine, Winter 2001), places lies in several categories: The venal lie; the white/social lie; the fib; the compassionate lie; and the justified lie. So much for the muddled shades of gray!
And in all this lies the task of the mediator.
"You tell that a.. to shove that offer where the sun don't shine!" The mediator smiles and marches off to the other caucus room.
When the mediator meets with the defendant, he/she says: "Mary, Jack sees this case in a different light. I believe he wants to be reasonable but he believes your offer to be too low. Would you object to my telling him that it was only intended to be an opening proposal and that you're negotiable?"
Mary bristles. "What a jerk he is. He's always this way. Wants me to bet against myself. You tell him if he wants to settle this case he'd better get with the program or we're walking! We have some room but not much." The mediator again smiles and returns to the other room.
The mediator politely informs Jack: "Mary obviously only has a certain amount of money to work with and you know she answers to her principals, who, wisely or unwisely, have evaluated this claim. She tells me she is as willing as you to resolve this matter and that her client is willing to negotiate. She does, however, want you to counter her offer, at which point she will respond. Let's try to keep things moving, okay?"
Was the mediator lying? No. Telling the truth? Sure. But the temper of communications was kept at a level that assured continuing negotiations and, other contingencies aside, an eventual settlement.
It is also the ethical obligation of the attorneys to be truthful, especially to the mediator, who in a real sense stands in the shoes of a judge. Would you lie to His Honor? On the other hand, it is not the job of a mediator to judge whether someone is lying. To do so carries risks in his role as a neutral.
As one sagacious mediator has said, the spinning that goes on in mediation is truly enough to make one dizzy! This mediator wonders how in the hell the process works as well as it does. But it does, and, like our legal system in general, it sure beats the alternatives.