The word “deceive” is derived from Latin, de – away + capere to take, decipere to ensnare, catch in a trap.
Deception is common human relationships. Deception is common in negotiation. Most human relationships are conducted by way of negotiation.
“Women know how to fake orgasm. Men know how to fake an entire relationship.” Sharon Stone
The most common form of deception is self-deception. Used in this sense it is a form of illusion. The buyer deceives herself as to value of what is to be bought, generally undervaluing it. The seller deceives herself as to value of what is to be sold, generally overvaluing it.
Sellers use all kinds of techniques to convince a potential buyer that the object is worth the seller’s valuation. Similarly, buyers use techniques to persuade the buyer to sell.
In a litigated case the buyer is the defendant, while the seller is the plaintiff. In effect, the plaintiff is selling the injury back to the defendant for a particular cost, which legally is called damages. The peculiarity of this situation is that the defendant buyer can not walk away from the transaction. The defendant must either buy a settlement, or face the risk of being forced to pay a valuation put on the injury by a court. The plaintiff seller also faces the same dilemma. There is only one potential buyer for the plaintiff’s injury. If that buyer refuses to buy at the valuation put upon the injury by the plaintiff seller, then the plaintiff will be compelled to accept whatever valuation is put on the injury by the court.
Thus the peculiarity of any litigated case is that neither party can walk away. There is only one potential buyer who is the defendant, and if the seller plaintiff chooses to walk away then she will receive nothing. But the risk of loss is high. The national average is 50/50.
Plaintiffs and defendants therefore use all means at their disposal, including self-deception, to persuade themselves that they will beat the national average. And it is certain that one of them is going to be correct. The uncertainty of litigated outcomes is the driving force behind the effort of parties to negotiate a satisfactory result between each other. It is an exercise in avoidance of risk. There is also the matter of the expensive trial, because the costs associated are usually substantial, and whichever side wins in the end, both sides have lost a great deal in terms of financial costs, time expended and the stress of going through with it, all of which add up to a powerful incentive to get the matter settled. And indeed, settlement rates are extremely high; less than five percent of litigated cases ever go to trial.
By no means all negotiations relate to events that have already occurred. Indeed, most negotiations concerns future events, but these are not the kinds of negotiation that usually require the assistance of a mediator. Most business people are entirely capable of mediating by themselves, and such negotiations are usually called contract negotiations, occurring many millions of times every year in order to work out amicable ways of profitable cooperation.
It is generally when things have gone wrong that the presence of a mediator is helpful, and the reason for this is that when something is turned into a TGW (thing gone wrong), there is always associated with it the upset, the emotional reaction of the parties to the difficulty.
People never enter into negotiation or dispute resolution with respect to matters in the past that have gone right. In mediation or in any situation in which one or more people are interacting, a person who pays attention will more easily detect truth from falsehood.
Even where people are not trying to deceive, and most people most of the time are not trying to deceive, the whole truth of what they are seeking to convey may not be apparent even to them, but to the listener who is paying attention the shadow truths are apparent more to the listener than to the speaker. Often, the speaker is working hard to convey her meaning but is not entirely sure what she wishes to communicate. The listener will pick up everything in the tail end of a sentence, a word here or there, an inflexion, a gesture, a throwaway line.
If the mediator is sitting there thinking what she is going to say or do next, then she is paying attention to her own thought processes and not to what is being communicated.
Paying attention, properly understood, is not terribly hard work but on the contrary, has a light and airy quality. For example, a person absorbed in a book or a movie or a piece of music or a football game is paying close attention, but without a great deal of effort. It is easy to pay attention when one is interested in the subject matter.
The opposite of attention is distraction.
People’s stories are not always consistent. That does not necessarily mean they are lying. It means their own perception of events alters as they focus their own attention on such events, bearing in mind that such events nearly always happen in the past and are preserved in memory. Because consistency is so valued in our society [Cialdini: Influence, Science and Practice, 2001] when parties engage in the game of winning and losing, which they do at trial because trial always results in a winner or a loser, the attempt is always to catch the opponent in an inconsistency.
But catching people out in inconsistencies is not the mediator’s game at all. She knows that when a person concentrates her mind on a past event, the perception of that event will change over time. Different aspects will be brought into memory and over the course even of a single day, varying interpretations of what happened may emerge. Also, people express something a particular way, and an hour later will talk about the same thing in a slightly different way. The complete mediator takes this all in without harsh judgment.
People who lie all the time are sociopaths, also called psychopaths. They are not very common. Because they do it all the time, they are extremely good at lying. Their whole life is based on the ability to deceive people. Therefore a sociopath may present herself very well and sound convincing. But as they proceed, because they do not tell the truth, the story does not add up. A detail here, a detail there, a huge inconsistency that is then sought to be explained, building up over a period of time, will teach any mediator unfortunate enough to run into such a person that she is dealing with someone quite dangerous. Behind the ordered façade and smiling face of a psychopath lie chaos and evil intentions. Such a person will not settle a case. Such a person will probably not attend mediation.
Everyone gets subjective perceptions mixed up with objective reality from time to time. The difference lies in the extremity of the psychopath. It should not be assumed that people who are inconsistent or confused or who do not tell the truth are necessarily psychopaths. Most people most of the time are quite ordinary. Nearly everyone is in the ordinary range. At one end of the range are psychopaths and criminals, at the other geniuses and saints. Most of us are in the middle, and mediators will have to deal with what is normal nearly all the time.
If a mediator finds herself falling into doubt and confusion, which cannot be sorted out by the exercise of reason, persuasion, further study and attempts to bring order into the situation, then she may have reason to suspect what is going on.
Doubt is not necessarily a bad thing. Doubt has a bad rap because it is uncomfortable. It is the fork in the road, without clear directions which way to proceed. But doubt is the mediator’s friend, as it is the friend of all explorers in any field. Doubt itself has a friend, which is hope. Without hope, doubt can result in paralysis, a complete inability to move at all. Certainty also generally results in no movement, because why should one move if one is certain of where one is. Columbus had hope, so he moved even though he was uncertain of the outcome. That example applies to countless others in the fields of science, technology, literature, exploration, etc. Hope is the feeling that what is desired is also possible, or that events may turn out for the best.
“Who are you going to believe, me or your lying eyes.”
Today's issue of "The Mediate.com Weekly" is Mediate.com's 500th compilation of mediation articles, featured blog posts, news, job listings, a field-wide calendar and more. See our 500th Issue Testimonials. For...By James Melamed, J.D.