Oh, what a tangled web we weave when first we practice to deceive.

7/12/2012
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10 Observations on
Ethical Management
of Deception in Mediation
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ROBIN CARAL SHAW, ESQ.
FL Certified Appellate, Circuit,
Family, and County Mediator
Tel: 561.477.7800
Email: [email protected]
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“Truth Be Told – Really? Minimizing Mediator Misunderstandings”
Breakout on Advanced Mediation Techniques (Day 1)
Presented by the Professional Mediation Institute
Wednesday, August 22, 2012
Orlando, Florida
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Oh, what a tangled web
we weave when first
we practice to deceive.
(No, it’s not Shakespeare. It’s from the epic poem “Marmion”
By Sir Walter Scott.)
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1. Aspects of Deception
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•
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•
•
Fundamental to Negotiation
Inadvertent? or Intentional?
Zealous advocacy
Puffing and Bluffing
Little White Lies
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“[O]ne who lies in negotiations is
in a position to capture almost all
of the benefits of lying while
suffering only a small portion of
the costs…”
Gerald Wetlaufer, The Ethics of Lying in Negotiations,
75 Iowa L.Rev. 1219, 1230 (1990)
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2. Deception:
Intentional? or Inadvertent?
*
Attorney who
..
..
..
*
offers less than the full amount authorized
withholds material information
overstates/understates a material point
A Mediator who
..
..
..
enters caucus withholding information
enters caucus and infers information
enters caucus and misstates information
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3. Virtues of Deception
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•
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Privacy
Flexibility
Concessions without “admissions”
Control over outcome; voluntary
Resolution within agreed-upon limits
Evaluation of strengths/weaknesses
No adverse consequences
Over-powering/persuading to “win”
in mediation
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4. Beneficial Mediator Deceptions
* SELECTIVE:
**
DISCLOSURE / NONDISCLOSURE
**
PRESENTATION OF ALTERNATIVES
**
USE OF MEDIATOR EMOTIONS
* USE OF:
**
EMPHASIS
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TIMING
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DISTRACTION TO AVOID HOT BUTTONS
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ANALOGIES AND HYPOTHETICALS
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PLAYING FRIEND, TEACHER, BULLY
**
BODY LANGUAGE / EYE CONTACT
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5. Attorney’s Need to Find Balance
Balance:
1. The opportunities to manipulate, control,
introduce, or withhold information
with
2. The need to obtain information from the
Mediator and the other party, evaluate it, and
rely upon it in reaching an agreement.
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What is the Attorney’s Obligation?
Florida Rules -- for illustration
The Rules Regulating The Florida Bar, Chapter 4:
Florida Rules of Professional Conduct (FRPC)
•
FRPC 4-4.1 Truthfulness in statements to others.
…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...unless disclosure is prohibited (by a State rule)
•
FRPC 4-1.4 Communication. (a) Informing Client of Status
of Representation. A lawyer shall: …(2) reasonably consult
with the client about the means by which… objectives are
to be accomplished; (3) keep the client reasonably
informed…;…and (5) consult with the client about any
relevant limitation on the lawyer’s conduct…
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6. Reality-testing Respecting
Confidentiality
A. “If you don’t settle this matter today, what
options exist for you and for the other party
to resolve the dispute?”
B. “Have you and your attorney discussed the
risks of not settling today?”
C. “What do you think are the strengths of the
other party’s case?”
D. “What do you think are the weaknesses of
your case?”
E. “What if…..”
Beware of hypotheticals that say
too much!!!
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7. Understanding Parties’
Expectations
A party discloses confidential information in
caucus and:
* ASSUMES the Mediator understands
the importance of information shared;
*
TRUSTS
the
Mediator
disclosures confidential;
to
keep
*
EXPECTS the Mediator to use the
information in conversations without
violating confidentiality;
*
And yet CREATE forward movement.
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8. How Far Can Mediators Ethical
Obligations be Stretched?
Florida Mediation Rules for illustration and discussion:
10.300 Mediator’s Responsibility to the Parties… includes
honoring their right of self-determination; acting with
impartiality; …(avoiding) improper influence and conflicts
of interest…
10.310 Self-Determination. …(b) Coercion Prohibited…shall
not coerce or improperly influence any party to make a
decision or unwillingly participate in a mediation….
10.360 Confidentiality. …(b) Caucus. Information obtained
during caucus may not be revealed… to any other
mediation participant without the consent of the
disclosing party…
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8…Ethical Obligations…continued
10.370 Professional Advice or Opinions.
…(c) …A
mediator shall not offer a personal or professional
opinion intended to coerce the parties, decide the
dispute, or direct a resolution…a mediator may
point out possible outcomes… and discuss…merits
of a claim or defense…
10.420 Conduct of Mediation. …(b) Adjournment or
Termination. A mediator shall: …(4) terminate a
mediation entailing fraud, duress, the absence of
bargaining ability, or unconscionability…
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9. When Is It Bad Enough to
Terminate a Mediation?
• Consult State’s rules
• Consider: unacceptable
deception, false claim of lack of
authority, or use of excessive
pressure
• Imposition of artificial time
pressure
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“The Truth About Deception
in Mediation”*
“Simply because the rules are silent as to standards of
truthfulness, it does not mean deception is acceptable
in every situation.”
“The lack of guidance by the professional rules has
created a self-policing standard. Deception is tolerated
and used, but at what cost?”
“While deceptive techniques might initially bring in greater
settlement dollars, there are severe consequences to
being untruthful while negotiating a litigated case.”
* Excerpt from “The truth about deception in mediation” by Jeffrey Krivis,
published in www.plaintiffmagazine.com, December 2007.
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10. Sources of Ethical Guidance for
Lawyers and Mediators
* State Ethical Obligations, Rules, Standards
* ABA Model Rules of Professional Conduct
* ABA Section of Dispute Resolution, and
Committee on Mediator Ethical Guidance
* AAA (Mediator Guidelines)
* JAMS Mediator Ethics Guidelines
* Guidelines/Codes of Mediation Associations
* Scholarly articles & mediation websites
* Case law (little if any on mediator deception)
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Articles of Interest
•
Defining the Ethical Limits of Acceptable Deception in Mediation, by
John W. Cooley, published by “Brief”, the Journal of the Dupage County
Bar Association, Illinois, and online by mediate.com (December 23, 2002)
•
Mediation Magic: Its Use and Abuse, by John W. Cooley, published by
the Loyola University Chicago Law Journal, 1997 29:1
•
The truth about deception in mediation, by Jeffrey Krivis, published at
www.plaintiffmagazine.com, December 2007
•
Hunting for Deception in Mediation – Winning Cases by Understanding
Body Language, by Jeffrey Krivis and Mariam Zadeh, published at
www.mediate.com, June 2006
•
Informed Consent and Deception in Psychological Research, by Philippe
Patry, published by Kriterion, Nr.14(2001)
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