Who ME? Manipulate? Negotiating Impartiality In Mediation

I was reading a great article in the New York Times this morning about “blue sky” transparent diplomacy in light of Obama’s Cairo speech and was intrigued by the phrase “constructive ambiguity” in international diplomacy.

The full Obama-Cairo Speech below:

Check out Experts Say Full Disclosure May Not Always Be Best Tactic in Diplomacy.  While citing the importance of back channel communications, the author quotes “one of the nation’s most experienced career diplomats and former under secretary of state”  as identifying the two “home truths” in international diplomacy:

One is, don’t tell lies. The other is, you can say more in private than you can in public, but they have to be consistent.

This brought to mind not simply the one or two memorable instances in which I caught mediators in deception during my litigation practice, but a recent experience communicated to me by a friend about one of those $15/K a day mediators.  I ask for the full 411 on these mediations because I’m intrigued by the value $15K/day buys.  Here’s the story.

My friend called me during a recent mediation to tell me that his mediator had just left the room after leaving this message with his “team.”

Your opponents just asked me to make a mediator’s proposal of $X.Y million.

Assuming that this disclosure was not a breach of confidence, I had to ask myself whether it was simply a (manipulative) hypothetical “offer” approved by the other side in form and content that the other side could safely disown.  In either case, I felt it was (a) unethical – i.e., a breach of confidence; or, (b) partial (not neutral, which is also unethical).

Someone could likely talk me down off the ledge on this one but I’m having trouble seeing it as permissible mediator behavior.   Assuming it wasn’t a breach of confidence, it raises the question whose ox is being gored here?  How much manipulation by the mediator is acceptable – is ANY manipulation acceptable and if the mediator is manipulating, is it POSSIBLE for him/her to do so without also being PARTIAL?

I have “caught” mediators in deception during my practice (and have not been quiet about my experience).  In case mediators do not recall legal practice, let me remind them that counsel talk to one another and despite our differences usually trust one another more than we trust our mediator.  If you lie to one of us or disclose something you shouldn’t be disclosing, don’t let the separate caucuses in which the mediation is taking place mislead you about the state of “play” in the litigation.  If the mediator is dishonest, will be found out.

If we do not hold ourselves to the absolute HIGHEST POSSIBLE ethical standards, our credibility, and our careers, are seriously at risk.

                       

Victoria Pynchon

Attorney-mediator Victoria Pynchon is a panelist with ADR Services, Inc. Ms. Pynchon was awarded her LL.M Degree in Dispute Resolution from the Straus Institute in May of 2006, after 25 years of complex commercial litigation practice, with sub-specialties in intellectual property, securities fraud, antitrust, insurance coverage, consumer class actions and all… MORE >