Defining The Ethical Limits Of Acceptable Deception In Mediation

This article was previously published by “Brief”, the Journal of the Dupage County Bar Association, Illinois. (11,29)

In a recent law review article I authored for the Loyola
University of Chicago Law Review, Mediation Magic: Its Use and
Abuse
,(1) I addressed the perplexing problem of the current lack of
ethical guidance available to mediators and mediation advocates on
the question of permissible uses of deception in mediation
generally and in caucused mediation, in particular.(2)

This article
is a sequel to that publication, offering the reader a condensation
of some of the ideas contained in that article and some additional
thoughts on criteria that might be appropriate to consider when
designing a truthfulness standard for mediation.

I. Introduction

Deception has been defined generally as “the business of
persuasion aided by the art of selective display,” and it is
effected by two principal behaviors: hiding the real and showing
the false.(3) Deception of various types is generally accepted as
integral to the American way of life.(4) “White lies” permeate all
aspects of social practice: “How nice to see you!” — when it is
not; giving false excuses in response to invitations or requests in
order to avoid hurt feelings; flattering the ordinary; bestowing a
cheerful interpretation on depressing circumstances; showing
gratitude for unwanted gifts; teachers giving inflated grades;
employers preparing inflated evaluations or recommendations.(5)

Modern society tolerates outright lying in a variety of
circumstances. In some circles, lying is justified when it avoids
harm, produces an overriding benefit, maintains fairness, or
preserves confidence or reputation.(6) Widely acceptable deceptive
behaviors in our society include: lying to protect oneself or
someone else from physical harm, the government using undercover
agents, lawyers manipulating facts in arguments before juries,
physicians withholding information from dying patients to spare
them fear and anxiety, and parents concealing from children for
years that there really isn’t an Easter Bunny or a Santa Claus —
at least one that rides in an airborne sleigh and comes down the
chimney.

The point is that both society, in general, and, as will be
made clearer infra, the legal profession in particular, consider
many types of deception acceptable. The purpose of this article is
to explore what the ethical limits of acceptable deception in
mediation, and by inclusion negotiation, should be.

II. The Problem

This article proceeds from the premise that consensual
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,(7)

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).(8) 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.(9)

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.(10)

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.”(11)

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.(12) 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.(13)

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”?(14) Because formal mediation is generally viewed as
“nothing more than a three-party or multiple-party negotiation,”(15)
we can begin to formulate an answer to this question by examining
the current limits of acceptable deception as employed by lawyer-negotiators.

III. Acceptable Deception by Lawyer-Negotiators

The launch point for our exploration of the ethical norms
governing the extent to which a lawyer must be truthful in
negotiations is Rule 4.1 of the ABA Model Rules of Professional
Conduct. Rule 4.1 provides:

Rule 4.1 Truthfulness in Statements to Others

In the course of representing a client a lawyer
shall not knowingly:

(a) make a false statement of material fact or
law to a third person; or

(b) fail to disclose a material fact to a
third person when disclosure is necessary
to avoid assisting a criminal or fraudulent
act by a client, unless disclosure is
prohibited by Rule 1.6.

In relation to lawyers representing clients in negotiation,
there is a wide chasm dividing expert opinion on the applicable
standard of truthfulness.(16) At one extreme on the “truthfulness
spectrum,” Judge Alvin B. Rubin of the United States Court of
Appeals for the Fifth Circuit, writing in the mid-1970s, proposed
two “precepts” to guide a lawyer’s conduct in negotiations: (1)
“The lawyer must act honestly and in good faith,” and (2) “The
lawyer may not accept a result that is unconscionably unfair to the
other party.”(17) In 1980, Professor James J. White published an
article in which he asserted his belief that misleading the other
side is the very “essence of negotiation” and is all part of the
game.(18) White observed that truth is a relative concept that
depends on the definition one chooses and the circumstances of the
negotiator(19). He further pointed out that lawyers hunt “for the
rules of the game as the game is played in the particular
circumstance.”(20) He identified the paradox of the lawyer’s goal
in negotiation — how to “be fair but also mislead.”(21) In 1981,
Yale Law Professor Geoffrey C. Hazard, Jr., principal draftsman of
the Model Rules of Professional Conduct, after reviewing Judge
Rubin’s and Professor White’s articles and other pertinent
literature of the day concluded that “legal regulation of
trustworthiness cannot go much further than to proscribe fraud.”(22)
In 1982, Professor Thomas F. Guernsey sought a middle-ground
solution. He suggested that conventions regarding truthfulness
dilemmas be formulated to guide those lawyers aspiring to be
ethical, but that the default standard in all negotiations should
be “caveat lawyer.”(23) More recently, other commentators have
advocated various truthfulness standards for lawyers in negotiation
in terms of “total candor”;(24) of avoiding “creating an unreasonable
risk of harm”;(25) of forbidding all deception;(26) of “permissible
conventions of untruthfulness”;(27) of allowing “advantageous results
… consistent with honest dealings with others”;(28) of “the golden
rule” — reciprocal candor;(29) of defining “what is not a lie is and
what lies are ethically permissible.”(30)

These varying perceptions of what standards of truthfulness
should guide lawyers’ conduct in representing a client in
negotiation offer little by way of identifying the standards that
do currently guide them. Under Model Rule 4.1 (a), what exactly is
a false statement of material fact in negotiation? What is a false
statement of law? And, under subparagraph (b) of that rule, when
is a lawyer’s disclosure of a material fact necessary to avoid a
client’s fraudulent act in negotiation? Pertinent Comments of
Model Rule 4.1 provide little help in answering these questions.

The Comments actually complicate the search for answers to the
questions presented by the text of Model Rule 4.1 and the formal
and informal Recent Ethics Opinions published by the ABA similarly
offer little assistance in interpreting Model Rule 4.1’s
application to a lawyer’s permissible conduct in negotiation.

Determining what constitutes unethical conduct is also
difficult because of numerous excuses and justification lawyers
typically marshal for lying in negotiation(31) and the plethora of
well-recognized negotiation strategies and tactics that have
developed in recent years. Such strategies and tactics are widely
considered to be within the rules of the negotiation game. Lawyers
have names for them; law books describe them in detail, law
professors teach them to students in law school.(32) Many of these
strategies and tactics rely for the effectiveness on techniques of
timed disclosure, partial disclosure, nondisclosure, and overstated
and understated disclosures of information — all of which involve
degrees of deception.(33) Their effectiveness is also dependent on
lawyer’s avoidance techniques and on subtle distinctions between
what information consists of facts as opposed to what is lawyer’s
opinion.(34) “Puffing” — a type of deception — is generally
thought to be within the permissible limits of a lawyer’s ethical
conduct in negotiation,(35) yet even with puffing, at some mysterious,
undefined point the line may be crossed and “the lack of competing
inferences makes the statement a lie.”(36)

An article published in 1988 poignantly illustrates the
differences of opinion and confusion among the experts regarding
truthfulness standards in negotiation.(37) Using four hypothetical
negotiation situations, the author conducted a survey of fifteen
participants which included eight law professors who had written on
ethics and negotiation, or both; five experienced litigators, a
federal circuit court judge, and a U.S. Magistrate. The chart
below contains the four situations and shows how the fifteen
experts answered the ethical question posed by each of the
situations.

Situation 1

Your clients, the defendants, have told you that you are
authorized to pay $750,000 to settle the case. In settlement
negotiations after your offer of $650,000, the plaintiffs’
attorney asks, “Are you authorized to settle for $750,000?”
Can you say, “No I’m not?”

Yes: Seven No: Six Qualified: Two

Situation 2

You represent a plaintiff who claims to have suffered a
serious knee injury. In settlement negotiations, can you say
your client is “disabled” when you know she is out skiing?”

Yes: One No: Fourteen Qualified: None

Situation 3

You are trying to negotiate a settlement on behalf of a couple
who charge that the bank pulled their loan, ruining their
business. Your clients are quite up-beat and deny suffering
particularly severe emotional distress. Can you tell your
opponent, nonetheless, that they did?

Yes: Five No: Eight Qualified: Two

Situation 4

In settlement talks over the couple’s lender liability case,
your opponent’s comments make it clear that he thinks
plaintiffs have gone out of business, although you didn’t say
that. In fact, the business is continuing and several
important contracts are in the offing. You are on the verge
of settlement; can you go ahead and settle without correcting
your opponent’s misimpression?

Yes: Nine No: Four Qualified: Two

In the midst of all this confusion and disagreement about the
appropriate truthfulness standard, one could reasonably conclude,
as apparently did Professor Hazard, that with respect to
negotiation, the present ethical norms for lawyers do little more
than proscribe fraud in negotiation — or, at most, they proscribe
only very serious, harmful misrepresentations of material fact made
through a lawyer’s false verbal or written statement, affirmation,
or silence. Assuming that this is the current standard of
truthfulness for lawyers who are advocates in negotiation, the
question then becomes: does this same standard of truthfulness
apply to lawyers who are advocates in mediation, as opposed to
negotiation? To that topic, we now turn.

IV. Acceptable Deception by Mediation Advocates

Very little has been written about the ethical standards for
lawyers who represent clients in mediation, much less the standards
of truthfulness which should guide them.(38) Nothing in the ABA
Model Rules of Professional Conduct for lawyers addresses lawyer
truthfulness in mediation. In mediation, of course, the advocate’s
duty of truthfulness has to be measured not only in relation to
“others” but also a special kind of “other” — a neutral who is
sometimes a judge or a former judge. Thus, two questions emerge:
(1) do the ethical standards for truthfulness in negotiation
described in the immediately preceding section also govern the
advocate’s truthfulness behavior vis-a-vis the opponents in
mediation; and (2) do those ethical standards also govern the
advocate’s truthfulness behavior vis-a-vis a neutral (lawyer,
nonlawyer, or judge) in mediation?

First, since the Model Rules are silent on the truthfulness
standards for mediation advocates vis-a-vis their opponents, one
would seemingly be safe in concluding that the rules regarding
truthfulness in negotiation apply. However, one could make a
persuasive argument that a heightened standard of truthfulness by
advocates in mediation should apply because of the “deception
synergy” syndrome resulting from a third-party neutral’s
involvement. We know from practical experience that the accuracy of
communication deteriorates on successive transmissions between and
among individuals. Distortions also have a tendency to become
magnified on continued transmissions. Also, we know from the
available behavioral research concerning mediator strategies and
tactics that mediators tend to embellish information, translate it,
and sometimes distort it to meet the momentary needs of their
efforts to achieve a settlement. To help protect against
“deception synergy” perhaps we should require more truthfulness
from mediation advocates and commensurately require more
truthfulness of mediators. But the practicality of such proposal
is questionable. Can we reasonably expect advocates to behave any
differently in mediation than they do in negotiation? Would such
truthfulness distinctions be impossible to define and even less
possible to enforce? It seems very likely. Thus, it appears that
the standards governing advocates’ truthfulness in negotiation vis-a-vis each other would also govern their conduct in mediation.
Second, with respect to truthfulness standards for mediation
advocates vis-a-vis the mediator, apparently the only available
guidance having even a modicum of applicability appears to be Model
Rule 3.3, “Candor Toward the Tribunal.” It is arguable, of course,
that Rule 3.3 applies only to court tribunals which adjudicate
matters in a public form — and not to mediators, special masters,
part-time judges, or former judges, and the like, who conduct
settlement conferences. If that is the intent of this rule, the
Model Rules do not specifically say so. Nowhere do they define
“tribunal”. It is not even clear whether Rule 3.3 applies to a
lawyer’s conduct before a private tribunal consisting of an
arbitrator or arbitrators, although it reasonably could be. If
they do apply in arbitration, would they also apply in hybrid ADR
processes, such as med-arb or binding mediation? While it is true
that the Comments to the above-quoted Rule 3.3 make no reference to
settlement conference or mediation, it is also true that they do
not explicitly exclude settlement conferences and/or mediation from
its coverage.

Other Model Rules further obfuscate the scope of the coverage
of Model Rule 3.3. For example, Comments to Rule 3.9, “Advocate in
Nonadjudicative Proceedings”, refers to “court” and not “tribunal”,
except administrative tribunal. So the question becomes: is “court”
different in meaning than the unmodified term “tribunal”? Comment
[1] to Rule 1.12, “Former Judge or Arbitrator,” defines
“adjudicative officer” as including such officials as judges pro
tempore, referees, special masters, hearing officers and other
parajudicial officers, and also lawyers who serve as part-time
judges.” Is the term “tribunal” then broader than “adjudicative
officer”. That is, does the unmodified term “tribunal” include
both “adjudicative” and “nonadjudicative” officers? If so, would
mediators or settlement officers fall within the scope of
“nonadjudicative” officers, thus making Rule 3.3 applicable to
mediators? For those readers who believe this analysis is an
exercise in tautology, you may be correct. The objective of all
this is to make two important points: (1) the current Model Rules
are currently thoroughly deficient in providing guidance to
mediation advocates on what their truthfulness behavior should be
vis-a-vis mediators (whether or not the mediators are judges,
former judges, or court-appointed neutrals); and (2) if Model Rule
3.3 were deemed to apply to mediation advocates, it would
significantly enhance the standards of advocates’ truthfulness-to-mediator responsibilities, most probably to the point that no
advocate would find it sensible to participate in the mediation
process. This describes the current state of affairs regarding
mediation advocates, but what about mediators?

V. Acceptable Deception by Mediators

Neither the Ethical Standards of Professional Responsibility
of the Society of Professionals in Dispute Resolution (“Ethical
Standards” nor the Model Standards of Conduct for Mediators (“Model
Standards”) prepared by a joint committee of the American
Arbitration Association, the American Bar Association, and the
Society of Professionals in Dispute Resolution addresses the
question of how truthful a mediator must be in conducting a
mediation. The Ethical Standards merely make a passing reference
to a duty they owe to the parties, to the profession, and to
themselves and state that mediators “should be honest and unbiased,
act in good faith, be diligent, and not seek to advance their own
interests at the expense of their parties.”(39) The Ethical
Standards contain no explanation of what “honest” means.

The Model Standards are similarly void of any specific
guidance to the mediator regarding standards for truthfulness.
They do, however, provide general guidance to the mediator in
handling confidential information. Thus, while the Model Standards
come closer than the Ethical Standards toward the topic of mediator
truthfulness, the Model Standards fail to address this crucial
topic directly, opting, perhaps wisely for the time being, to keep
standards regarding the matter vague and ambiguous. Although the
Model Standards recognize that the parties and the mediator may
have their “own rules” regarding confidentiality and that the
mediator should discuss the nature of private sessions and
confidentiality with the parties, they do not identify any specific
information or types of information that must, at a minimum, be
communicated regarding confidentiality rules or the private session
procedure in order to be in ethical compliance with the Model
Standards. And perhaps just as importantly, the Model Standards,
unlike the ABA’s Model Rules of Professional Conduct for lawyers
(as discussed infra), do not identify or define any specific type
or types of mediator untruthfulness that is intended to be
ethically proscribed.

Thus, mediators — lawyers and nonlawyers — currently have no
specific formal guidance regarding how truthful they must be in
conducting mediations. Put another way, they do not know exactly
what kinds of mediator deception is acceptable, ethically, and
what kinds are not. This is an important realization. The role of
mediator which is quickly becoming an adjunct or full-time practice
area for thousands of lawyers across the United States currently
has no uniform, ethical standards officially sanctioned by the
American Bar Association.

Despite this serious lack of guidance, even if lawyer-mediators were to look to the ABA Model Code of Judicial Conduct
(August, 1990) to find analogous guidance for themselves as to
required standards of truthfulness to guide their specific behavior
in conducting mediations, they would be disappointed to find that
there are none.(40) Remarkably, no canon or commentary of the ABA’s
Model Code of Judicial Conduct offers any specific guidance
regarding judge’s duty to be truthful to others, although such
requirement might be presumed from Canon 1 which states that “a
judge shall uphold the integrity and independence of the
judiciary.” But that requirement is so general as to be of no
utility whatsoever to our inquiry here.

VI. Some Specific Questions Confronting the Legal Profession
Regarding Required Standards of Truthfulness in Mediation

The above discussion of the legal profession’s minimal
regulation of the use of deception in mediation triggers some very
important questions about what standards of truthfulness should be
developed to guide mediators and mediation advocates in performing
their functions. Here is a short list that immediately comes to
mind:

To what standards of truthfulness should a
mediator be held?

What types of deception are constructive,
within the bounds of fair play, and acceptable?

What types of deception are destructive,
outside the bounds of fair play, and
unacceptable?

Should there be different standards of truthfulness
in mediation for lawyers and nonlawyers?

Should the standards of truthfulness
be any different for the lawyer-mediator than
the lawyer-advocate in either negotiation or
mediation?

Should there be different standards of truthfulness
for a mediator when parties are unrepresented by legal
counsel?

To what standards of truth and honesty
should a judge who conducts a settlement
conference be held?

Should the standards be higher than
the non-judge mediator — lawyer or
lay person?

Should a judge who conducts a
caucused settlement conference
in a case be ethically precluded
from deciding a case on the merits?

Should mediators be held to a higher level
of truth or honesty when they are appointed
by a judge to conduct the mediation?

Should lawyer-advocates be held to
a higher level of truth and honesty
when representing a client in a
mediation where the mediator is
court-appointed?

Should mediators (lawyers, nonlawyers,
or judges) be required to explain
certain “rules of the mediation game” before
the mediation begins?

If “game rules” should be explained, of

what would they consist?

Would the “game rules” vary depending

on the sophistication of the parties?

Would the “game rules” vary depending

on whether the parties were represented

by legal counsel?

VII. Some Preliminary Thoughts Regarding the Search for Answers to
These Questions

If you set about to define rules of a game, you must take care
to ensure that those rules:

  • are compatible with the game’s nature and its purpose;
  • do not significantly interfere with the means by which
    the players can accomplish the game’s purpose;

  • are comprehensible, reasonable, and fair; and
  • are capable of compliance by all of the game’s
    players in all situations.

Otherwise — depending on the degree of inappropriateness of the
rules — the game will not be played, the rules will be ignored,
they will not be enforced, or their application and enforcement
will result in unfair treatment of some of the players. For
example, if you prescribed a new rule in basketball that all shots
at the basket must be taken from a point behind the center line of
the court, many players might decide not to play the game anymore.
They might opt for some other sport. Or, if you required that the
basketball be dribbled no more than ten times between passes,
players and the referees might have trouble keeping track of the
dribble count and the rule might not be enforced. Or, if it were
enforced, it might be enforced nonuniformly, leading to player
discontentment and possibly to abandonment of the game.

Similarly, when designing rules to govern ethical conduct in
mediation (and by inclusion, negotiation), one must be careful to
balance the rigor of an imposed duty, on the one hand, against the
reasonable likelihood of compliance in the context in which the
duty is to be fulfilled, on the other. To impose an ethical rule
in negotiation and mediation that charges lawyers (and non-lawyers)
with a duty antithetical to the nature and purpose of these
processes, that is incomprehensible, unreasonable, or unfair,
and/or that is incapable of compliance by many of the people it is
designed to regulate would be a futile act. People would not comply
with it, and if such rule or rules were enforced, people would not
play the mediation game. They would litigate in court as much as
possible. So, our goal should be to find the described balance as
derivable from the four rule-making criteria appearing at the
outset of this section.

A. Rules must be compatible with the game’s nature and purpose

Let’s first consider the nature and purpose of mediation. The
nature of mediation is an information management process and its
purpose is to resolve conflict. The process is not static; rather
it is dynamic in the sense that, in it, parties continuously
develop and share information face-to-face or through the mediator.
Infusion of new information may cause the parties to rethink what,
at any particular moment, their risks are and what they really
desire in the settlement. In some situations, these changes may
literally occur minute-to-minute. Truth may likewise change from
minute-to-minute. What is true for a party in mediation now, may
not be true for a party 15 minutes from now in the same mediation.
So, in designing ethical rules, we must keep clearly in mind that
truth, in the context of an ongoing mediation session, is also
dynamic — not static in nature. A party may start a mediation
stating that he will not accept less than $50,000 to settle the
case; yet he walks out happily embracing a $37,500 settlement.
Thus, whatever truthfulness standard is adopted for mediators and
mediation advocates, it must be able to accommodate the mediation
process’s integral and unalterable truth-mutating nature and it
must not interfere in any significant way with mediation’s conflict
resolution purpose.

B. Rules must not significantly interfere with the means by which
the players can accomplish the game’s purpose

That mediation’s purpose is to resolve conflict says nothing
of the means that may be used to accomplish resolution. And that
brings into focus the second criteria for ethical rule design: the
rule should not interfere in any significant way with the means by
which the mediator or the mediation advocate can accomplish the
purpose of mediation. The question that must be addressed here is:
may a good end justify any means? May truth be bent, colored,
tinted, veneered, or hidden by a mediator or mediation advocate if
the result is achieving a satisfactory resolution, or better yet,
a win-win solution without harm to any party? In short, is there
such a thing as a noble lie? Our immediate instincts beckon us to
answer “no”; but the reality is that many of us lied to our
children so long about Santa Claus — with no catastrophic results
and no tinge of shame — that deep down we know that something like
a “noble lie” exists and it’s okay. Thus, whatever truthfulness
standard is adopted, it must accommodate. or at least acknowledge,
the concept of the “noble lie.”

C. Rules must be comprehensible, reasonable, and fair

The third criteria for ethical rule design is that any imposed
rule should be comprehensible, and it should be reasonable and
fair, both in its content and its application. As to
comprehensibility, an ethical rule must be stated clearly and
unambiguously. A rule that is capable of various interpretations
can produce unfair, unwanted, and even nefarious results.

As to content, this third criterion stimulates inquiry into
what types of communication (written, verbal, or nonverbal) or
withholding of information should be prescribed or proscribed by
the ethical rule; or whether there should be any prescriptions or
proscriptions at all. My own personal reaction to this question
currently is that it would make much more sense for the rules to
proscribe certain specifically defined types of untruthful
statements, behavior, conduct, or omissions rather than use vague
blanket terms like “false statement of material fact or law.” In
this regard, a review of some of the literature on development of
conventions of truthfulness,(41) untruthfulness,(42) and good faith(43) may
be of some help to the designers of the truthfulness standard for
mediation.

As to the reasonable and fair application of an ethical rule,
the third criterion forces consideration of whether the same
standard of truthfulness should apply across the board to all
participants in mediation whether they be lawyer or nonlawyer
mediators, lawyer-advocates, judges, or former judges. My
intuitive response is that the standard of truthfulness should be
the same for all, unless some exception can be identified and
justified. Conceptually, there should be no separate rules for
judge-mediated cases as compared to non-lawyer or lawyer mediated
cases. The key is selecting a truthfulness standard that is
capable of both comprehension and compliance, and therefore
respect. And this leads us to the discussion of the fourth criteria
for ethical rule design — the rules must be capable of compliance
by all persons whom they intend to regulate.

D. Rules must be capable of compliance by all of the game’s
players in all situations

Whatever truthfulness standard is selected, there must be a
final check to determine whether all persons that the standard is
designed to regulate can reasonably be expected to comply with it
in all predictable situations. This requires a type of
“troubleshooter” thinking to imagine the variety of ways that the
truthfulness standard might come into play. There might be certain
types of situations, party configurations, or claims or defense
types in which the standard needs to be modified by making it more
or less rigorous or by limiting its application in some way. By
this process, it may be concluded that certain specific exceptions
to the truthfulness standards need to be provided and specifically
explained in the text of the rule or its accompanying comments.
This criterion also requires the designers to consider whether the
mediator, for example, should be required to explain the “rules of
the game” and truthfulness expectations at the beginning of the
mediation, and if so, what the content of that explanation should
be.

VIII. Conclusion

In July, 1997 the American Bar Association established the
Commission on Evaluation of the Rules of Professional Conduct,
commonly known as “Ethics 2000” whose work is currently underway.
Its purpose is to examine and consider updating the ABA’s Model
Rules of Professional Conduct in light of changes in the legal
profession, being brought about by new and developing practice
areas and by the impact of rapid innovations in global
communications and technology. The Chair of the Commission hopes
to report to the ABA House of Delegates at the Association’s annual
Meeting in July, 2000 — an ambitious challenge, indeed,
considering the breadth of the task and the comprehensiveness of
the analysis that will be required. Some of the issues this
Commission will most likely be addressing will include complex
ethical questions relating to the field of alternative dispute
resolution — both mediation and arbitration.(44) It is hoped that
this article and the Mediation Magic article from which it derives
will offer the Commission some useful insights into the tasks of
defining the limits of acceptable deception by lawyers engaged in
mediation and of determining an appropriate truthfulness standard
for lawyers in the practice of law, generally.


End Notes

1. 29 Loyola U. of Chicago L. Rev. 1.

2. Caucused mediation is a commonly employed type of mediation
procedure in which the mediator conducts separate and private
discussions with the parties and their counsel. See generally,
Dwight Golann, Mediating Legal Disputes 68 (Little, Brown and Co., 1996).

3. See David Nyberg, The Varnished Truth: Truth Telling and Deceiving in
Ordinary Life 66-67 (1992); J. Barton Bowyer, Cheating: Deception in War &
Magic, Games & Sports, Sex & Religion, Business & Con Games, Politics &
Espionage, Art & Science 48-49 (1982).

4. See Nyberg, supra note 3 at 66. See also, Michael Lewis and
Carolyn Saarni (Eds.), Lying and Deception in Everyday Life (New York: The
Guilford Press, 1993); Robert W. Mitchell and Nicholas S. Thompson (Eds.),
Deception: Perspectives on Human and Nonhuman Deceit (Albany: State
University of New York Press, 1988).

5. See Sissela Bok, Lying: Moral Choice in Public and private Life 58-59
(1989).

6. Id. at 76.

7. Howard Raiffa, The Art & Science of Negotiation 128-29,359-60
(Cambridge, Mass.: Harvard University Press, 1982).

8. See Jay Folberg and Alison Taylor, Mediation: A Comprehensive Guide to
Resolving Conflicts Without Litigation 263-80 (San Francisco: Jossey-Bass
Publishers, 1984).

9. See Robert D. Benjamin, The Constructive Uses of Deception:
Skills, Strategies, and Techniques of the Folkloric Trickster
Figure and Their Application by Mediators,
13 Mediation Q. 3, 15-16
(1995).

10. See Christopher M. Moore, The Mediation Process: Practical Strategies
for Resolving Conflict 35-43 (San Francisco: Jossey Bass Publishers,
1986).

11. Id. at 269.

12. Id. at 187-98.

13. Id. at 189.

14. Benjamin, supra note 9 at 17.

15. Benjamin, supra note 9 at 12.

16. See generally, Scott S.Dahl, Ethics on the Table: Stretching
the Truth in Negotiation,
8 Rev. Litig. 173 (189). See also Eleanor
Holmes Norton, Bargaining and the Ethic of Process, 64 N.Y.U.L. Rev.
493 (1989).

17. Alvin Rubin, A Causerie on Lawyers’ Ethics in Negotiation, 35
La. L. Rev. 577, 589 (1975).

18. James J. White, Machiavelli and the Bar: Ethical Limitations
on Lying in Negotiation,
1980 Am. B. Found. Res. J. 926, 928.

19. Id. at 929-31.

20. Id. at 929.

21. Id. at 928.

22. Geoffrey C. Hazard, Jr. The Lawyer’s Obligation to be
Trustworthy When Dealing with Opposing Parties,
33 S.C. L. Rev.
181, 196 (1981).

23. Thomas F. Guernsey, Truthfulness in Negotiation, 17 U.Rich. L.
Rev. 99, 103 (1982).

24. Professor Walter W. Steele, Deceptive Negotiating and High-Toned Morality, 39 Vand. L. Rev. 1387, 1403 (1986).

25. Rex R. Perschbacher, Regulating Lawyers’ Negotiations, 27 Ariz.
L. Rev. 75, 133-34 (1985).

26. Geoffrey M. Peters, The Use of Lies in Negotiation, 48 Ohio
State L. Jour. 1, 50 (1987).

27. Dahl, supra note 16 at 199.

28. Ruth Fleet Thurman, Chipping Away at Lawyer Veracity: The ABA’s
Turn Toward Situation Ethics in Negotiations,
1990 Jour. of Dispute
Res. 103, 115 (1990).

29. Carrie Menkel-Meadow, Lying to Clients for Economic Gain or
Paternalistic Judgment: A Proposal for a Golden Rule of Candor,
138
U. Pa. L. Rev. 761, 782 (1990).

30. Gerald B. Wetlaufer, The Ethics of Lying in Negotiations, 75
Iowa L. Rev. 1219, 1272 (1990).

31. Id. at 1236 to end.

32. See Ted A. Donner & Brian L. Crowe, Attorney’s Practice Guide to
Negotiations Chs. 11 and 12 (2d ed., 1995).

33. See Id.

34. Guernsey, supra note 23 at 105-127.

35. Wetlaufer, supra note 30 at 1244-45.

36. Guernsey, supra note 23 at 107-08.

37. See Larry Lempert, In Settlement Talks, Does Telling the Truth
Have Its Limits?
2 Inside Litigation 1 (1988).

38. See John W. Cooley, Mediation Advocacy (NITA, 1996); Eric
Galton, Representing Clients in Mediation, (Dallas, Tex. Texas Lawyer
Press, 1994).

39. Ethical Standards of Professional Responsibility, Society of
Professionals in Dispute Resolution (Adopted June 1986), “General
Responsibilities.”

40. See generally, Jeffrey M. Shaman, Steven Lubet, and James J. Alfini,
Judicial Conduct and Ethics (2d Ed.) (Charlottesville, Va.: Michie,
1995).

41. See Guernsey, supra note 23 at 103.

42. Dahl, supra note 16 at 199.

43. Kimberly K. Kovach, Good Faith in Mediation — Requested,
Recommended, or Required? A New Ethic
, 38 S.Tex. L. Rev. 575, 622
(1997).

44. Ethics of advocacy in mediation and arbitration seems to
be a proper topic for the Commission’s work in revising the Model
Rules of Professional Conduct. Whether mediator and arbitrator
ethics fall within the charge of this Commission is not altogether
clear. It would seem more appropriate to include consideration of
the ethics of these two neutral functions — not currently
categorized as the practice of law — in connection with a revision
of the ABA Model Code of Judicial Conduct — which regulates
another neutral, non-practice function of lawyers. It further
seems advisable, if not imperative, that a study and evaluation of
the Model Rules and the Model Code occur simultaneously so that any
overlapping considerations can be fully developed, addressed, and
coordinated.

                        author

John Cooley

John W. Cooley is a former United States Magistrate, Assistant United States Attorney, Senior Staff Attorney for the United States Court of Appeals for the Seventh Circuit, and a litigation partner in a Chicago law firm. He is a past Chair of the Mediation Committee of the ABA Section of… MORE >

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