The Fraudulent Mediator

There I was, the first person in the room to tell a lie. With tongue firmly embedded in my cheek, I look at the role of the mediator somewhat like the law student travels from the absolute rules of first year to the incredible exceptions of second year. Here it comes. As the words leave my mouth, I am appalled, but confident about this ludicrous statement: “You need not rely on evidence or expert witnesses, but rather know that my assumption is that everything you are about to tell me is true.” Nothing could be further from the truth.

Can truth be discovered when the guide begins the journey based on a lie? Perhaps. More correctly, a mediator must look at the task ahead with a sense of solemnity and a sense of humor. Only two minutes into the mediation, before which I have welcomed the parties, thanked them for their promptness, and invited them to enjoy a comfortable chair. Often, the chair is not comfortable, nor is the office properly air conditioned or heated, but we proceed anyway. This particular mediation that spurred me to think about my lie was held in a plush suite with matching leather furniture and water available around the room. All parties had been appropriately introduced, the ground rule of no interruptions established, and a brief attempted joke put forth for levity.

Now comes the business. All participants are admonished about the confidentiality of the process, asked to acknowledge their intended compliance by signing a cover sheet to this effect, and then questions are fielded. There are none. Is this because I have done such a superb job at explaining everything or because the parties are tense and confused? Who knows? We proceed. Now it is time for the lying to begin. Who will go first? The mediator, of course.

Though there will be lies, half truths, and the occasional full truth asserted, it is unimportant whether I believe or disbelieve the forthcoming statements. What is critical is how wedded each is to their own statements and what the opposing side hears. Therefore, my lying aside, we proceed.

So this humble process in which I believe so deeply proceeds on a lie spoken by the neutral who should be above any lying. This process is replete with lies. And I have tossed the first one out. It is ironic that this terrific process which offers hope, clarity, and resolution stems from everyone lying.

Now that we begin from quicksand we must forge ahead to the light. Both sides cannot be absolutely truthful because their stories conflict more than they agree. Whether we spend five minutes or two hours, my job is to listen, clarify, and offer creativity. In the alternative, lie. The parties seek fairness and better in the mediation than in court are their chances to secure it. The process may be smooth or it may be awkward. This is discovered within the first few minutes of the mediation.

If my lie enables the parties to tell their stories, be heard, and feel empathy, then the minor transgression is justified, at least in the mediator’s mind. We don’t want the parties steeped in legalese which might as well be Swahili to most parties. We hate hearing that someone has an open and shut case because we know that such a case has yet to be presented. We seek resolution, not delineated arguments substantiated by evidence and reliable witnesses. Though credibility is important to a fact finder, we discount it. I lie so they don’t have to (another rationalization).

Does this mean that my lie relieves them of the burden of straying from the truth? Sure. But my statement serves to deflect the need for an evidentiary hearing, a witness stand, and an oath. Less than an hour later my initial lie resulted in a clear and simple agreement between the parties who had been in a standoff for eighteen months. This was a good day because I had lied, not gotten caught, and helped two parties to finish their hostilities with each other. Now, tell me that you as a mediator have not lied!

That was successful, so I thought I’d try it again. In my second mediation since facing my own truth that I lie (I’ve actually performed over 300 mediations), it was a high stakes, high visibility case where the heels were not firmly entrenched, but the money was big enough so that they were getting to that position. Time to summon up my lie.

Mediations take place in all sorts of surroundings. Recently, one party asked if there were two matching chairs anywhere in the office where I was conducting a mediation. The answer, truthfully, was no, but then it was not my office. However, my second post awareness mediation was being held in posh offices with matching leather high back chairs. There were silver water services strategically placed around the conference room and neither the heating nor air conditioning would be malfunctioning today. How could I lie in such surroundings?

Two attorneys and their clients on one side plus one attorney and two clients on the other were joined by myself and one trainee. This was a high-powered personal injury mediation that had lingered for over two years. The twist was that the insurance company had already paid all out of pocket expenses which were considerable, within the month following the incident. What was at stake was diving into a deep pocket by the plaintiff for emotional distress and pride. How better to begin a contentious session than with a lie.

All the Power Point displays, easels, and 8 x 10 glossy pictures were undermined with that one sentence: “I believe everything you are about to tell me, so what is it you wish to accomplish today?” Just then it crosses my mind. If a witness or even a party lacks credibility, there is an opportunity to rehabilitate their testimony, assertions, etc. But what happens when the mediator lies? Can they be rehabilitated? I settled on probably not, and moved on.

Within 45 minutes, we had a short, clear, agreement that would be satisfied within 7 calendar days. The moral of the stories seems to be that so long as the liar remains neutral, all may work to the satisfaction of the parties. Now, go forth and enjoy your mediations.

                       

Roger D. Hartstone

Roger Hartstone received his BA from the University of California, Berkeley, and his JD from Southwestern University School of Law, Los Angeles. He has mediated over 300 cases in a wide variety of civil matters and sits as a Judge Pro Tem for criminal and civil matters. His long standing… MORE >