11 Jan The Lying Disputant

During a mediation caucus, one of the disputing parties admits that to gain a negotiating advantage he or she lied during the joint session. The mediation agreement provides that the mediator will keep the information confidential unless disclosure is expressly permitted. What does the mediator do – if anything – if the lying disputant demands that the mediator keep confidential the fact of the lie?

Mediators are contractually and ethically obliged to maintain confidentiality, absent permission to disclose, and act impartially to “reconcile the competing needs and interests of involved parties”?(1)

Mediators are not shocked to discover that a disputant has lied. American lawyer Rebecca Grey has described participating as plaintiff’s counsel in a mediation during which she overheard the mediator confide to his intern that “basically, everyone just spends the whole day lying to you and you just have to spend the figure out what is really going on.” Ms. Gray was upset because she had not lied during her presentation of her client’s case and, as an ethical lawyer, she did not lie. However, the mediator’s comment prompted her to momentarily wondered if she should lie during mediation if doing so would protect her client. She concluded that she should not:

Undeniably, some misrepresentations would advance the case if believed by the mediator and opposing counsel. But anecdotally, this rarely works and usually backfires. If the lie is discovered, the lawyer is exposed to the mediator, the other lawyers and sometimes the parties. Depending on the severity of the misrepresentation, the damage to the lawyer’s credibility can be mild or catastrophic.(2)

According to Canadian lawyer and mediator Allan Stitt, “posturing in mediation is common; lying is rare. Unfortunately, the line between posturing and lying is not always clear.”(3)

I suggest that a “line” can be drawn between lying about the facts relevant to the dispute and the positions the party take during negotiations. Lying about what happened is different from lying, for example, that a disputant is making “a final offer” or is about to leave the mediation.

The Stitt Feld Handy Group commentary entitled Parties Lying in a Mediation includes as a “problem for the mediator” that “negotiation has no rule against lying, and the mediator is not an arbiter of truth and has no authority to prohibit lying”. But surely the statement is too broad. As noted, Mr. Stitt himself has distinguished between lying and posturing.

Lying about relevant facts is probably a basis on which to set aside a settlement agreement, whereas lying about a negotiating position (such as the false “final” offer) is not.

The author of Parties Lying in a Mediation suggested that in the former case the mediator could:

• conduct an interest-based analysis of the behaviour (why would/did you lie? how did/would it benefit you?);
• warn of possible outcomes such as impaired communications and therefore flawed assessment of interests, damaged relationships and/or an invalid settlement agreement;
• refuse to participate in deception and therefore say nothing about the subject-matter of the lie;
• communicate the lie, but with the caveat implied by phrasing the information as having been “said” by the other disputant or with such phrasing as “she said as follows”;
• remind the other party not to commit to a solution unless satisfied;
• ask questions in a further joint session that would allow for correction or testing of the information;
• take no action or end the mediation.

Christopher Moore, author of the classic mediation text The Mediation Process, commented on the mediator’s conundrum:

…a mediator, when using a caucus and assuring confidentiality of information revealed, may place him or herself in an ethical bind. Should confidentiality be the mediator’s highest value, or should full disclosure of information relative to a fair settlement of the dispute have primacy? (4)

Mr. Moore concluded that “there is probably no single right answer”.

So, where does the mediator draw the line between maintaining agreed-upon confidentiality and providing full and fair disclosure? The “single right answer” may be to paraphrase Lord Denning’s answer upon being asked where the line should be drawn when the court has a discretion to exercise: where the good sense of the mediator indicates that the line should be drawn.

After all, the parties presumably hired a mediator they believed capable of exercising the good judgment needed to help them reconcile their competing needs and interests.

Notes:

1. Moore, The Mediation Process, 4th, p.22
2. Truth in Mediation, Plaintiff Magazine, August 2019
3. Mediating Commercial Disputes, 2003, p. 144
4. The Mediation Process, supra, at p. 498