I don’t know about you, but I am growing weary of the ease with which many disputants and their lawyers practice deceit in mediation. I understand advocating for your clients. I understand taking a strong stand on principles. However, when it crosses the line to a firm and apparently genuine communication with the mediator that the client cannot, will not, now or ever pay more than $XXX for this lawsuit, the party bears the risk that the mediator will believe him/her, rely upon that representation and communicate that to the either side. If it’s a bluff, I’m not sure it’s fair to blame the mediator if the other side chooses to leave the mediation, based upon the understanding that no meeting of the minds is possible.
I had it twice recently: the defendant gave me an “absolute” line in the sand and, with their permission, I communicated it to their opposing counsel, who, trusting my words, packed up to leave and departed when the sun set to continue the litigation. In one instance, the attorney for the Plaintiff happened to linger in the office to make a few personal calls before leaving. When the defendant’s saw he was still there, the negotiation began in earnest, ending with a successful settlement at almost 10 P.M.
In the other, after communicating (again with permission) the upper limits of the range of settlement authority the Defense had, the Plaintiff’s counsel actually did, politely and at 6:00 PM leave. When I returned to the defense’s conference room, the client said: “How could they leave? We are not at an impasse, are we?” Lesson here seems obvious, but in light of the current news events regarding our President’s rationale for firing his FBI Director, the take away is: things are not always as they appear. You can’t trust anybody to speak the truth all of the time. And, in my mediation practice, please don’t deceive or bluff your mediator, because you risk that I will believe in your sincerity and may lose an excellent opportunity to reach an agreement–even if it’s beyond that line in the sand and well after hours.