Nearly all mediations involve parties that view the same facts in a very different light. But in a great many mediations, the parties go further: they are convinced the other side is not taking its position in good faith, but rather is knowingly lying or engaging in some nefarious scheme. It is, for example, all too common in a commercial mediation to walk into one caucus room and be told that the other side knows it is lying on a particular point, and they walk in the other caucus room and hear the identical assertion.
Why is this phenomenon so common? I think this is due, in part, to the fact that when there are strong emotions underlying a position, the parties just cannot believe someone can hold a contrary position in good faith. Another factor may be that parties unconsciously seek to quell doubts about their own position by convincing themselves the other side is not only wrong, but also acting in bad faith.
Whatever the cause, the view that an opponent is acting bad faith can be a serious impediment to settlement. It is much more difficult to make concessions and reach a middle ground with someone acting in bad faith. You would be giving some ground not just to an opposing view, but to someone acting immorally. It is also harder to shed feelings of insult, anger and other emotions if you believe the other person is intentionally causing those feelings.
So how do you deal with this? There is no magic bullet, of course, but I suggest two contradictory approaches, each of which can be effective in the right situation:
While, as I said above, there is no magic bullet, I don’t think it advisable to try to avoid it or sugar coat it the issue of bad faith. If people believe the other person is acting maliciously, that belief needs to be listened to and reality tested so that people can honestly confront the nature of their dispute.
Indisputably At the ABA SDR conference this year, Cynthia Alkon, Noam Ebner,Lydia Nussbaum and I did a session at the Legal Educators Colloquium entitled Preparing Students for the Future of...By John Lande