Mediation In Texas

Deception and Manipulation: Contrasted in Litigation and Mediation

By J. Steve Pursley


A skilled Texas mediator is one who possesses a talent for altering perspectives of parties who are engaged in conflict and dispute. Embracing the artful use of manipulation  and deception  for the purpose of a constructive outcome that will provide benefit for the parties to a dispute, is viewed as a controversial technique amongst some mediators and legal practitioners in Houston and throughout Texas. This is largely due to their discomfort with the use of these terms (deception and manipulation), although each are precise and accurate descriptions of activity. The anatomy of mediation is multi-dimensional. Mediation techniques and style's vary significantly. However, most mediators are hired to investigate, explore and then, alter the perspectives of the parties to a dispute who have engaged their services. If the parties to a dispute shared the same perspectives, the dispute would most likely not be worthy of engaging the services of a talented mediator. "Manipulation" and "deception" are words that make many established scholars and legal practitioners squirm in their seats, uncomfortable with the possibility that an ethical dilemma might exist. The rhetorical nature of the words chosen to describe what is actually taking place (manipulation and deception), are also key components embedded in the traditional practice of law, between an advocate, client and the opposition.

Some scholars advance the position that "lying and deceit are an integral part of effective negotiation."  Interestingly, much of the deception incurred by a party to litigation, is systemic, however, deception may also be a supplemental imposition induced intentionally or inadvertently, by legal counsel. Manipulation of a represented client may occur as much by what is not communicated by the advocate to the client in the early stages of litigation, as opposed to the use of proactive manipulation. "Note that in an adversarial culture, it is wrong to lie but okay to withhold information."  This is not the case with an attorney's own client, in which case, a duty to fully disclose exists.  Nevertheless, this is a process that requires a great deal of judgment and which is almost impossible to determine if passive manipulation has occurred, by a third party, due to the dynamics involved in the environment between the attorney and client. "There is a fine line between allowing the other party to continue to hold a false belief and adding support to that belief."  This dichotomy of passive manipulation coupled with systemic deception offers a backdrop and sets the stage for the dispute, long before a mediator is introduced into the process of developing resolution to a dispute by employing constructive deception, manipulation of ideas, and reformulation of perspectives, in an effort to reach resolution.  

This article will examine, discuss and contrast the dual continuum of manipulation and deception, which takes place in the litigation and mediation processes. The article then examines the motivations for a mediator to use manipulation and deception and contrasts it with the passive manipulation and deception, which may be permitted by legal practitioners, if not directly imposed by nuances and sometimes iniquities of the litigation system itself. Further, this article questions the financial motivations indicated where use of manipulation and deception occurs in litigation by contrast to mediation. Litigation and mediation are intertwined avenues for conflict resolution. Therefore, focus is afforded to the dynamics of dual perspectives occurring in the minds of conflicting parties and how the litigation arena and mediation arena affect one another in this regard. The article concludes an analysis of this paradigm, with a theory that the litigation process is at times, deceptive and manipulative from inception, particularly when benefiting the service providers delivering the process benefit more than the parties to the conflict. Yet the use of deception and manipulation in the process of mediation tends to predominately benefit the parties to conflict, even at times, when a completed resolution is not accomplished in totality. The conclusion of this article suggests that the system of litigation and its participants (attorneys and litigants), typically impose more deception and manipulation upon litigants, than the process of mediation. The article also concludes with an assertion that the mediator's use of deception and manipulation, while managing the redeployment of information to the participants in mediation, is a constructive use of deception and manipulation, and it is one of the most basic of responsibilities bestowed upon the mediator.

Manipulation and Deception in the Litigation Process

The initial meeting that takes place between a prospective litigant and advocate, usually involves a problem being described by the prospective client to the attorney, naturally in search of a legal alternative leading to a solution. Of course, a variable in this stage of the process, is the extent to which the attorney probes and explores concerns beyond initial phases of litigation, in this early phase of the consultation. After all, it is unrealistic for the attorney to fully explain all potential outcomes to many litigation scenarios, as  this would be virtually impossible. Nevertheless, a great percentage of such meetings undoubtedly end with the attorney advising that a demand letter should be sent to the opposition. Further, when the initial consultation results with a plan that logically entails the filing of a lawsuit if the demand letter is not responded to in an adequate and timely manner, the wheels of litigation have commenced. The landscape of the dispute has changed as of that moment. This is all a prospective litigant needs to know, for the process of deception to begin. Next, a series of myths impact the process, which are in part imposed by culture (television and other media) and may be perpetuated, even if inadvertently, by the advocate, which result in deception. Moreover, the deception may be self-imposed  by the prospective litigants who frequently hear only what they want to hear and believe only what they want to believe. The litigant's mindset is such that, they believe that they have found a solution to their problem with the suggested initial, preliminary actions of their competent advocate.  

What does the advocate do to discourage possible misperceptions or deceptions?  Certainly an advocate may make typical comments at this stage, similar to the following: "I can't guarantee a favorable outcome" or "let's start here and see what happens next to make our next move" or "we'll subpoena this information and make them accountable." Is the attorney that the prospective litigant is considering hiring, likely to introduce discouraging statements in a meeting at this stage of the prospective litigation process, similar to the following?:

1.    If this goes to trial it will be a long and expensive journey
2.    Statistically, if we file suit, the likelihood is that settlement will be achieved, but only after a long and expensive litigious journey
3.    In the event we win a jury verdict, the judge may overrule the verdict at the conclusion of trial, after a long, expensive pre-trial preparation leading to the trial
4.    If a judgment is obtained, further legal action may be necessary to enforce the judgment
5.    Following a successful trial and jury verdict, an appeal may be possible which is always expensive

When the advocate avoids extensive discussion of these topics in the earliest phase of contemplation of litigation, is this a deceptive tactic? Clearly, this may not be a proactive means of deception,  because, after all, the attorney is simply not focusing on all of the negative and speculative attributes of the prospective nature of potential litigation.  
The litigation system is by design, a progressive mechanism for dispute and conflict resolution. The prospective litigant relies on an attorney to interpret the alternatives available. The attorney must reach into the tool box of legal maneuvers to address the conflict by imposing an action on the opposition. Each time the advocate pulls a litigation tool out, the client is only able to judge the consequences of use of the tool with a very limited knowledge base in which to draw from and while in a vulnerable state of mind. The client will be asked to okay the use of a litigious solution, which the client is likely to be in an inadequate position to adequately judge. Has deception and manipulation occurred? Contrast this scenario with any other, where the party deceived is manipulated by a lack of information, a vulnerable state of mind and a tendency to deceive themselves. It is a classic environment for manipulation and deception.

What happens next? The wheels of litigation turn slowly and expensively. Each round of investment may be perceived by the litigant, as a solution or the final blow necessary to impose on the opposition in order to reach resolution. The litigant often perceives each step during the pre-trial phase of litigation, to possibly be the crushing tool, which will make the opposition give in and settle. However, in most cases, as each expensive litigation maneuver is utilized, the litigant becomes more vulnerable and financially weaker, as does the opposition, who will likely retaliate with their own expensive legal maneuvers. In this common occurrence, each side of the dispute is receiving an education in legal tactics, one piece at a time. The attorneys cannot be faulted for not educating their clients adequately to foresee all possible junctures from inception. The legal system itself is complicated to the extent that conflicting parties often make decisions only based upon a reliance, that they have purchased representation from the most talented advocate. This may become the single most important decision making criteria considered by the litigant, throughout the process of litigating the case. Of course, to some extent, each side typically believes they have the most talented lawyer and that is why ultimately, they will "win."  

The litigation attorney naturally, uses many forms of deception on the opposition while representing the client's best interest, which is maximizing settlement.  A partial list of such tactics might include the following:

1.    Concealing the willingness to settle
2.    Making inflated demands
3.    Exaggerating strengths and weaknesses
4.    Concealing client intentions
5.    Claiming a lack of authority
6.    Failing to volunteer relevant facts

These forms of deceptive manipulation are mostly proactive and anticipated in the negotiation or mediation communication process. Other less subtle techniques which play on the systemic assumptions of the participants and involve passive activity or non-disclosure are less recognized and discussed by authorities on the subject.    

Is the litigation process, a system which by design, manipulates and deceives the layperson? Indeed the foregoing suggests that it may be. It is an environment where parties to conflict may be deceived and manipulated in part by their attorney's passive communicating of information, which is only sufficiently adequate to keep the litigant amenable to either initiating litigation or continuing the litigated fight. Further, deception may also be imposed by the system of litigation itself, by virtue of the complicated and complex array of alternatives available and rules of evidence and civil procedure, which are designed to promote a more fair and just means of resolve. However, these complexities result in an inability to adequately be understood by many of the people who are using the system to litigate their conflict. Therefore, a meritorious argument that deception and manipulation is frequently self-imposed by litigants, who are uninformed and in a vulnerable state of mind, is a valid proposition. Many litigants must trust and rely almost entirely on the instinctive decisions suggested by their attorneys.

Is Deception and Manipulation Constructive for Litigation?

Certainly, it is arguable that a client who has bestowed their trust in an advocate to assess problems and recommend decisions with a litigation strategy, cannot then hold the advocate accountable for the ultimate success or failure of every strategic decision. However, in this regard, is it not logical to examine who ultimately benefits the most from the litigation process at the conclusion of a litigated conflict?

One respected civil court Judge has stated that in approximately 20 years on the bench, he has never seen a litigant proclaim what a great trial it was in retrospect and how much they would like to do it again.  Additionally, he states that the jurors and litigants almost never characterize a deposition or other pre-trial maneuver as being great, while it seems that many attorneys feel differently, marveling at their work product and performance. As suggested from these comments, very few litigants are ultimately satisfied with the outcome of litigation through the completion of trial. On this assumption, how can we rationally conclude that the process of litigation provides meaningful, worthwhile conclusion for disputes, in the perspectives of the parties in conflict? According to this very experienced trial court judge, satisfaction at the conclusion of trial is a seldom occurrence for most parties to litigation.

Examine the conclusion of a long litigation battle that will provide counsel on each side of a dispute with significant professional fess for representation. In general, a consensus exists that attorneys are well paid for their services. If the foregoing is the more frequent outcome upon completion of utilization of the litigation process, what does this suggest about the productive or constructive use of manipulation and deception by the attorneys, on their own clients? If the use of deception and manipulation by attorneys, more often than not results in an unfavorable outcome, does this undermine any justification the attorneys may pose for use of deceptive or manipulative tactics that have an effect on their clients perspectives? When the outcome of a long-term representation is unfavorable from the client's perspective, questions naturally arise regarding the use of tactics in retrospect. Whether deception is imposed upon a client by their attorney; self-imposed by the client; or systemic, and an unfavorable outcome may be anticipated, we must conclude that such deception and possible manipulation is not constructive.

The reality is that our system of litigation compensates those who are custodians of the information. The information possessed regarding the case itself and the process of litigating can be used to manipulate the parties' perspectives at every juncture or crossroad throughout the process. Through use of this manipulation, the parties to conflict may be unintentionally or intentionally manipulated by their advocates and the advocates of their opposition. The litigation system itself is by design, a process that lends itself well to deceiving and therefore manipulating the parties who seek to use it for dispute resolution via litigation. Litigants themselves also infrequently impose self-deception and self-manipulation, while in a vulnerable and under-informed mindset. The use of deception and manipulation in mediation contrasted with litigation differs in very specific ways discussed in the next section of this article. Most noteworthy amongst the contrasts are the following:

1.    The mediator has been engaged to provide services by each of the parties to the conflict, not just one side
2.    The mediator has a relatively short and defined period of time to achieve a successful outcome for the parties engaging the mediator's services
3.    The mediator's fees generated by mediators are structured in a manner, which is unlikely to present conflicting interests between the mediator and their clients. This is largely due to the insignificant fee amounts when compared to the overall cost of litigating a dispute. The mediator is unlikely to be accused of profiteering from the prolongation of the dispute

Deception and manipulation are used in litigation resulting in an outcome that is unfavorable for the parties who are paying for the process, while not unfavorable (financially rewarding) for their attorneys, should not be considered a constructive use of deception or manipulation. The use of deception and manipulation in mediation, has relatively little significance that may be correlated with financial incentive of the mediator. A mediator's use of deception and manipulation, is by virtue of the design of the mediation process and driven to be used by the mediator, purely by motivations to achieve the desired outcome of the parties engaging the mediator for services.  The mediator is not in a similarly precarious position as that of the attorneys, with regard to the potential for misperceptions resulting from their relationships with the parties, and the use of deception or manipulation. However, as we will see in the discussion that follows the mediator's position requires the management of multiple bodies of information. This is largely attributable to different criteria, relevant to the mediator's position as follows:

1)    Two parties instead of one
2)    Focus on perspectives in addition to "facts"
3)    Sensitivity to the timing of redeployment of information
4)    Recognition of boundaries of confidentiality which must be maintained where requested 

Deception and Manipulation in Mediation

In a mediation session, one technique available to the more sophisticated, less facilitative mediator involves the sharing of information about settlement offers on two continuums. The first continuum will be the revelation of only the degree of an offer on the table, which is necessary to invoke the party who is receiving the offer, to make a counter-offer.  The mediator uses this tactic in order to maintain a fluid continuation of progress in offers and counter-offers, during the negotiation.  The mediator also has a body of unrevealed knowledge, which remains undisclosed to the opposing parties, and, the mediator possesses a body of knowledge which is revealed to the opposing parties.  Is this technique one of deception and manipulation? Undoubtedly, duality of information tracts where one is only known to the mediator and not revealed until the right time during the negotiation, is not only a deception, but also a manipulation of the parties' perspectives, as described in this process.  

Another technique that a savvy mediator may employ, is the appearance of confusion in order to motivate a party to verbalize an idea or concept to a level of greater articulated explanation, thus necessitating that the concept advanced by the party, be further analyzed by its sponsors (party and attorney), in the process.  This invokes self-analysis on the part of the party advancing their position. Of course this is manipulative and deceptive if the mediator is clearly understanding from the outset what is being communicated, while acting confused in order to solicit further explanation.  
Mediators may use body language, voice intonation or other communication skills to project an image that is designed to manipulate the thoughts and provoke self-awareness in the conflicting parties.  Some mediators may display emotions designed to produce a response. Other mediators may use any number of approaches that are counter-intuitive to the normal process of "reasonable" and "logical" thinking.  Any technique used, which is not a genuine projection of the mediator's honest feelings and beliefs may be construed as manipulative or deceptive.  However, with that acknowledged, isn't it necessary to analyze the aspect of self-gain derived by a mediator from such an action? A mediator is typically paid for a period of time, which is from inception, calculable and understood by the party responsible for payment. The mediator is charged with producing an environment whereby the parties will reach resolution to a conflict within the specific time allocated and paid for in comprehensible terms, which a layperson is capable of easily understanding.  Furthermore, the process of mediation is voluntary and not imposed on parties beyond the time paid for which is usually minuscule by comparison to that of typical litigation. The foreseeability of prospective junctures occurring in the process of mediation, by contrast to litigation, is relatively well defined and quantifiable. Most importantly, at the conclusion of successful mediation the satisfaction rate of parties to conflict is likely to greatly exceed the satisfaction rate of parties who either litigate through trial, or settle on the steps of the courthouse before trial, because significant savings are likely to have occurred in the absence of complete preparation for trial by their advocates.

The greatest benefit derived from mediation should typically be realized by the conflicting parties who have paid for the mediation services, if the outcome is resolution. If most parties to mediation are by enlarge the primary beneficiaries of a successful outcome, is it not reasonable to conclude that deception and manipulation is most likely to be constructive in mediation? Contrast this with litigation. The same cannot be stated as deception and manipulation pertains to the litigation process. The subject may be debated endlessly; however, this author advances the concept that mediation is an arena where deception and manipulation provides a productive outcome that is constructive for the parties paying for the service. By contrast, the litigation system, is a sphere in which the conflicting parties, who are paying for services, are rarely the beneficiaries of manipulation and deception, and it is therefore, not constructive or productive in a great percentage and possibly the majority of litigated cases.            

Assessing Manipulation and Deception in the Litigation Process During Mediation

Once it is acknowledged that parties to litigation seeking mediation have likely incurred some level of deception or manipulation in the litigation process, regardless of the avenue of imposition, it is productive for the mediator to read the perspectives of the parties and assess any misperceptions the parties may be carrying into the mediation process. An astute mediator will utilize techniques for uncovering these perspectives of the parties as early as possible in the mediation, because, these perspectives may provide opportunity for the mediator to either manipulate further (constructively) or avoid obstacles to resolution and negotiation barriers which are founded upon misconceptions created early in the litigation process, by virtue of prior deception or manipulation. This presents a challenge for the mediator, not dissimilar to the challenge the attorney faces when the client first consults them as an advocate. As described above in this article, the attorney cannot undermine the utilization of litigation services by selling each prospect on the pitfalls of litigation during the first series of meetings. In the same respect, a mediator should not undermine the attorney's preceding advice to his client, by suggesting that the litigating process has been unfruitful in the past or will be in the future. However, the mediator cannot cause each party to reflect on future litigation events, which are potential occurrences in the absence of resolution, in order to properly assess the benefits of resolution.

The mediator desiring to continue in a commercially successful enterprise, must utilize a method of communication with the parties and their advocates, which causes the parties to realistically assess future events without placing blame on their attorneys for not theretofore providing their clients with more precise perspectives. Assessment of costs assigned to such events can be a touchy subject, because it relates to the attorney's fee expectations. Advance inquiry and consultation with the attorneys may be the best first step for a mediator to determine how best to approach the subject, during the mediation.

The mediator must determine upon initial assessment, the degree the parties have adequately assessed their position in the litigation process. This may be vital to achieving resolution. In effect, the perspectives of the parties are more important than reality, however, reality may be used to manipulate the appropriate perspective for achieving resolution.  Is this a deceptive practice? Of course it is. The key question however, is whether it is a constructive deceptive and manipulative practice?  If it is judged to be constructive and productive, in effect, an enhancement to achieving a resolution that each party will be satisfied with, the mediator must conclude that such deception and manipulation is productive, worthwhile, and without ethical concerns.  

The dynamics reach an even greater degree of complexity after determining the level of deception, which has occurred in advance of beginning mediation. Just as the mediator may conduct the mediation process with two sets of offers and demands, (revealed and unrevealed),  the pre-trial process may be viewed in the same manner. A body of information exists, which the conflicting party is aware of, educated upon, and informed. Also, the existence of various bodies of potentially applicable law and litigation tactics which the party is either unaware of or, not adequately informed to a level of competent understanding, which could have a profound impact on the continued litigation process, regardless of the stage of litigation the conflict is in. The mediator should assess what portion of this inventory of information exists, and secondly, what portion should be utilized in the orchestration of a settlement. Additionally, the mediator should determine how and when to best use that portion of information deemed productive for utilization in the mediation process. In other words, how should the information be used to manipulate the necessary perspectives of the parties, adequately for achieving resolution? Is this deceptive? Once again, the answer is that it probably is, at least in part, deceptive. However, the real question is whether this is a constructive deception producing a constructive and productive manipulation?  

Advanced Mediation Reality Testing

"Reality Testing" is a basic technique used by mediators. This term simply refers to causing the party to view criteria through a more realistic perspective in order to arrive at a more reasonable decision for acceptance or rejection of a resolution proposition. However, a more sophisticated analysis of the dynamics involved in attorney represented  mediation and negotiation, reveals that reality is not necessarily a discernable quantum.  In fact, the perspectives of the parties are more relevant to a negotiated settlement, than discovering "reality."  In essence, whatever the mediator's view of reality is, it must be set aside by the mediator, to the extent that it is not compatible with enhancing the negotiation process and a successful outcome. Yet the potentially arguable levels of perceived reality should be readily available for utilization in the mediation process by the mediator. Much of this body of knowledge may be the unrevealed information. "In every negotiation, there is information that is useful to putting an acceptable agreement together but too risky to discuss directly with other parties because it might be used by them to their disadvantage."   The mediator may surgically select the right time and specific informational components for revelation to a party during the negotiation, presuming the mediator has obtained prior consent.

In consideration of the forgoing, this author opines that a mediator, who can astutely obtain such information early in the process of mediation, while involving the advocates representing the parties, may best position the mediation for successful resolution. Foremost, through early communication with the attorneys, in an effort to not only uncover their perspectives of future costs and legal considerations for continued litigation, the mediator diffuses potentially adverse opinions which otherwise could cause problems with credibility during the mediation, in the presence of the parties. Secondly,  even a non-attorney mediator would be able to best assess and obtain a body of information relevant to continued litigation with the aid of the managing litigation attorney of each side. Thirdly, a concurrence from the parties' attorneys at the time the mediator elects to utilize such information, will make it a more effective available tactic. The mediator is soliciting aid from the representing attorneys to manipulate their clients, in a way, which is compatible with prior manipulations developed in order to alter their perspectives. Is this deceiving? Certainly it is. In fact a mediator following these steps is not only deceiving the parties, but in effect manipulating and deceiving their attorneys, constructively.

Summation of Manipulation and Deception In Mediation of Litigated Cases

Is manipulation of mediating parties' perspectives and their attorney's perspectives a deceitful tactic which is unscrupulous? Absolutely not! In fact isn't this exactly the service that the parties to mediation are asking for? The parties to mediation who bring their legal counsel have surely negotiated on some level before their arrival. The mediator is chartered with the task of conditioning each side's perspectives to a point which the parties can accept, voluntary resolution to conflict, which has theretofore not been attainable. The mediator is tracking a complex process of information collection and distribution. The contents of this article articulate what could be diagramed as four bodies
of information represented by four overlaid bell curves, as follows:  

1) Information possessed and understood by parties, prior to mediation
2) Information possessed and partially communicated to the parties prior to   
    mediation, but not adequately understood by the parties to be utilized in
    forming perspectives that are optimal for settlement decision making
3) Information possessed by attorneys, but not revealed to the clients concerning
     the components of continued litigation
4) Information not possessed by the attorneys (or their clients) concerning future
     litigation and possibly affecting future aspects of continued litigation

Litigation attorneys may initially view number four above and question whether it is possible for the mediator to know more about bodies of information relevant to the future aspects of continued litigation, which is more complete than the representing attorney. Assuming that each attorney holds differing perspectives to the process of litigating the case, the mediator should be in a better position than either attorney to assess this body of information simply because of access to a more complete combination of information by virtue of being debriefed by each side. Also, if the attorneys on each side have thought through the conflict so thoroughly that they share the same perspectives regarding future consequences of litigating, then why hasn't the case settled before? Assuming the litigation is not being perpetuated by counsel for self-serving motivations, the skilled mediator is arguably in a superior position for determining the most appropriate information to be deployed and the most optimal time in which to effectuate such deployment to achieve settlement. Of course, the mediator must restrain use of information obtained by either side which is requested to remain in confidence.  

Timing of ADR Processes Relative to the Litigation Process

The relative importance of mediation timing within the overall process of litigation is another important component, when considering the discussion above related to use of information in mediation and constructive use of deception and manipulation techniques. For example, the timing of hiring expensive experts may be costly such that parties each reach a stage in which they feel that no resolution will suffice which adequately recoups costs. On the other hand, the information developed from experts may be strategically important to the process of successfully mediating to resolution. Other costly aspects of pre-trial litigation may be necessary or likewise prohibitive to achieving resolution in mediation. How can a mediator, litigants, attorneys, or the courts determine the most optimal timing to pursue mediation prior to trial?

In analyzing the economically optimal timing of mediation during the pre-trail litigation process, it is logical to accept that multiple criteria should be assessed to the extent possible, including the following:

1.    What are the potential recoveries relative to the cost outlays necessary for each stage of pre-trial litigation?
2.    What are the estimated costs of trial preparation and trial approach?
3.    What cost would be necessitated following trial in post-judgment litigation?
4.    What cost would be incurred in the event of appeal?
5.    Finally, what is the likelihood, based on litigation, that either or both parties may pursue bankruptcy protection if a trial results unfavorably for either side?

The key element for the mediator to attempt to assess in each of the categories above is the cost perceived by each party rather than the actual, accurate estimates. Each side may tend to estimate low costs coupled with high benefits in an effort to posture strength in negotiating. Conversely, a party may project a willingness to invest exorbitant expense for the same reason. Therefore, the investigation of optimal timing for intervention in the litigation process with mediation may also reflect duality of bodies of information that must be managed by the mediator. Each party may strategize an approach that reveals differing information on costs and expected results from deposed witnesses and expert reporting. However, if common ground can be obtained by the mediator regarding the perceived benefits expected by each party relative to costs, the mediator can utilize this information with similar tactics of manipulation and deception. If the perceptions of each of the parties, irrespective of the motivations of their opposition, is such that each party concludes that a resolved dispute is economically viable at a chosen stage of the litigation process, the mediator has positioned the dispute in a favorable time frame in which the parties may each have more flexibility and therefore motivation to arrive at an agreed settlement.

One method of determining the four levels of perception between each of two parties, (one perspective for each side's counsel and another for each party), is to quiz the attorneys in advance of the mediation. The mediator must then look for commonality amongst the attorney's perspectives. Likewise, a mediator should be keenly aware of stark differences in the attorney's perspectives. In the same manner as described above, the mediator may solicit the attorney's permission to use the information in negotiation. Once the attorney has divulged their perspectives, a reality check may be presented to the represented party. To the extent that a party is out of synchronization with their counsel, a determination may be made by a mediator as to the level of deception or manipulation that may have taken place prior to mediation, in the litigation process. As earlier described in this article, a manipulation or deception may have arisen in a variety of ways during the litigation process. Regardless of the method in which the deception took place, when the result is a divergent perspective between the attorney and client's regard for the litigation process, costs associated therewith and likelihood of a litigated result favorable to their position, an opportunity exists for the mediator. This double dichotomy provides opportunity for the mediator to manipulate further the perspectives of each side and the perspectives of their attorneys. Of course, the deception utilized by the mediator will stem from determining how much of the information regarding perspectives of each party and each advocate, to share with their opposition.

The mediator's timing for use of this information is critical and should always result in a fluid progression of the mediation or negotiation process.  Utilization of select bodies of information may provide early willingness to pursue the process, or it may come later by motivating a movement in bargaining, or providing the necessary criteria to close a deal between the parties, if properly injected during the appropriate time in the conclusion of negotiation.   If the result of deceptive and manipulative use of selected information drawn from these sources is constructive to optimal outcome for the parties, the manipulation and deception orchestrated by the mediator cannot be faulted, because the successful result of a productive mediation is achieved through constructive use  of manipulation and deception by a calculated deployment of information designed to condition the perspectives of the participants.   


Mediation of represented parties is certain to present divergence in perspectives. It is unlikely that any individual participant will share the exact same perspective as another participant, at the point in time the case reaches mediation, when the case hasn't reached prior settlement. Therefore, the assessment of differing perspectives for the purpose of determining the most efficient and productive way of utilizing and disbursing  information between the parties and their advocates offers an opportunity to the mediator to manipulate and therefore engage in deceptive tactics. Differing perspectives amongst participants in the mediation should be viewed as differing bodies of information, because the perspectives of the participants are more important than the actual accuracy of reconstructed reality, in deriving settlement. Each difference in perspective, offers a unique plane of information. When the mediator redeploys information in a different context, fragment or timing than that in which it was received, this may be characterized as manipulative or deceptive. This characterization is acceptably accurate and in this author's opinion without ethical dilemma.  

Analysis of ethical aspects of manipulation and deception in the litigation arena as contrasted with the mediation process offers suggestion that such manipulation and deception noted in the litigation process may be viewed as more profound and possibly attached to significantly greater ethical questions than any such questions posed in the mediation arena. The process of mediation is undertaken for the purpose of altering perspectives by using tactics which alter the parties' positions to a point which resolution can be obtained by agreed settlement. If the mediator's tactics include deception and manipulation of information, no unethical derivatives are produced, because, the parties have contracted with the mediator precisely for this purpose. Equally important is the concept that use of manipulation and deception in mediation should be utilized only for the purpose of constructive outcome, designed to result in a productive conclusion to the process. Mediation is not a process of judgment, but a negotiation between three of more parties. When two parties are represented by legal counsel, the negotiation is between at least five parties (including the mediator), because each participant has a vested interest in the outcome and each has differing perspectives. The mediator will almost always have a lesser vested interest in the outcome than that of the other parties to the negotiation. The mediator is the custodian of information, which has been voluntarily provided by the other participants, for the purpose of being redeployed at the mediator's discretion, in an effort to craft a settlement. It is the conclusion of this article that the mediator's use of deception and manipulation while managing the redeployment of such information to the participants in mediation, is one of the most basic of responsibilities bestowed upon the mediator. Deception and manipulation in this context is constructive and should not only be permissible for a mediator, but expected by all of the participants to the negotiation or mediation.

Marquis Who's Who in America 2007


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