Using Deception in Mediation Chapter 6
Attorney Jeffrey Krivis teaches at the Straus Institute for Dispute Resolution at Pepperdine University in Malibu, Calif. He is former president of the International Academy of Mediators. He heads First Mediation Corp., an Encino, Calif., consulting firm. He is a member of Alternatives’ editorial board. He wishes to thank Brent Daub for his contributions to this article.
Now that the court system has institutionalized the use of mediation in virtually all civil proceedings, trial lawyers are paying closer attention to their negotiation skills. While those skills involve less structured behavior than presenting a case to a jury, they nevertheless involve one common strategy that even the most skilled practitioners refuse to acknowledge: deception.
Deception can best be described as the raw material that drives negotiation of litigated cases. It allows barriers to be overcome and concessions to occur. It can mean anything from mild exaggeration to lying and outright fraud.
The “spectrum of possibilities” appears in the chart on the next page.
Deception is part of the human condition and it would be a mistake to dismiss it as improper, particularly when resolving litigated disputes. The exception, of course, is fraud, which is illegal and unethical in all contexts.
While candor and honesty are preferred when parties are concerned about continuing relationships, it is unrealistic to expect litigators to be candid when the goal is to get as much as they can for their clients.
In other contexts, white lies and exaggerations actually have become a part of our social framework. They are not only considered acceptable in certain situations but are expected when they result in righting a human wrong, maintaining fairness or avoiding harm.