The Truth About Deception in Mediation
Now that the court system has institutionalized the use of mediation in virtually all civil proceedings, trial lawyers are paying closer attention to their negotiation skills. While those skills involve less structured behavior than presenting a case to a jury, they nonetheless involve one common strategy that even the most skilled practitioners refuse to acknowledge: deception.
Society Tolerates Limited Uses of Deception
Deception can best be described as the raw material which drives negotiation of litigated cases. It allows barriers to be overcome and concessions to occur. It can mean anything from mild exaggeration to lying and outright fraud. The spectrum of possibilities appears below:
- White Lies
- Partial Disclosure
- Silence as to Other Party's Mistake
- False Excuses
Deception is part of the human condition and it would be a mistake to dismiss it as improper, particularly when resolving litigated disputes. The exception of course would be outright fraud, which is by necessity illegal and unethical in all contexts. While candor and honesty are preferred when parties are concerned about ongoing relationships, it is unrealistic to expect litigators to be candid when the goal is to get as much as they can for their client.
In other contexts, white lies and exaggerations have actually become a part of our social framework and are not only considered acceptable in certain situations but are expected when they result in righting a human wrong, maintaining fairness or avoiding harm. For example, the government uses spies and undercover agents, which is a form of deception, yet it is morally acceptable because it is necessary to stop crime, catch criminals and protect the country. Politicians often exaggerate or make promises that they can't keep, yet they will be reelected for the next term. Parents tell very tall tales to their children about the tooth fairy, Santa Claus, the Easter bunny and other childhood fantasies because our society does not see this form of deception as destructive. When a family pet dies, parents often give their children fabricated explanations to protect them from having to deal with the difficult challenges of death.
Most people are guilty of some form of deception every day. How often do we turn down a dinner invitation and give a false excuse? Or answer "fine" when a co-worker asks, "how are you doing?" when in fact we are having a tough day. How about telling someone that an outfit looks good when it doesn't or offering thanks for a gift that you really don't want? These are all considered acceptable forms of deception. Our culture reinforces the idea that telling a white lie is better than hurting someone's feelings, if it results in a positive outcome or makes the situation less difficult. Deception is tolerated in negotiations because there, too it can be used constructively and productively to develop concessions that lead to agreement.
The Truth About Deception in Mediation by Jeffrey Krivis and Mariam Zadeh
Copyright © 2013 First Mediation Corporation
Copyright © 2013 The Negotiator Magazine
The Negotiator Magazine September 2013