Some Honest Talk About “Lying” At Mediation: An Open Letter

Dear Mediation Attendee/Counsel/Client: I look forward to welcoming you at our upcoming mediation session. As your mediator, it is my responsibility to remain as neutral as can be, conduct the process in a manner that is fair to everyone, and to help the parties talk and think about this dispute, hopefully concluding with a settlement. Let’s put all of the cards out on the table about something right now. At some point in the day, you may tell me something that others might call a lie. Others might call it a lie. I won’t. I also won’t call you a liar, because I can’t peer into your mind, heart and soul to determine if you are lying to me. Furthermore, it isn’t really my job. A mediator is not a trier of fact, or a decision-maker. There is very little we can do during the day that is coercive. We don’t deprive people of food, water, shelter from the elements, or restroom breaks. Mediation is not designed to be adversarial or inquisitive. Truth be told, I wasn’t able to force my kids to eat vegetables with any regularity, so it is unlikely that I could make you do something you don’t think is ultimately in your best interest. So, are you going to lie to me? Your first reaction may be “that depends on what we are calling a lie.” Not really; it depends on what you are calling a lie. You see, the law doesn’t typically use the word “lie.” Instead, legislatures frequently use blunt words like “fraud,” or polysyllabic words like “misrepresentation,” when talking about things that people in the everyday world call “lies.” We can agree that intentionally making a false representation of a fact in order to deceive someone is, in anyone’s dictionary, a lie. But the more nuanced the situation, the longer we pause to think. Is the expression of an opinion by someone with special knowledge, upon which the speaker knows the listener will rely, a lie? What about a statement made by someone who isn’t sure of the truthfulness or falsity of the statement? Let’s leave the fine slicing to people with sharp knives. For our purposes, let’s make only two cuts: statements of fact, contrasted with statements of value. A statement of fact is nothing more than repeating something that is known or knowable. Usually, reference to an objective, authoritative source, makes this easy. For example, who holds the records for most home runs hit in a U.S. major league baseball career? The answer is “Barry Bonds, with 762.” Who are in second and third place? That answer is “Henry Aaron, with 755, and Babe Ruth with 714.” Anyone who disputes these facts is simply arguing with reality, is misinformed, or, maybe, lying. Did the injured party seek medical care within 48 hours after the accident? Someone will have the burden of proof if that fact is disputed. How much was paid for the real estate? Online records will reveal what happened in the transaction. Sometimes there is no authoritative source. “Who ran the red light?” Absent a camera that captures the moment with the right view, there will be a dispute. Someone else will have to listen to the evidence, and make a finding about the facts. As mediators, I confess that we sometimes remind ourselves “I don’t know; I wasn’t there,” so we don’t lose our objectivity. More importantly, we can’t declare the facts today. Arguing what conclusions arise from the facts is important at trial or arbitration, but you won’t argue your way to the truth at our mediation. We will probably spend time talking through the strength of your presentation to someone else – an arbitrator, court or jury. That leads us to statement of value. We know that Messrs. Bonds, Aaron and Ruth are first, second and third in total home runs in a career. Does that tell us who was the better home run hitter? This is a question of value. These questions usually contain a qualitative, or “judgment” word (better, greater, wiser), and introduce variables. Each of these men played baseball in different eras, with different equipment, different quality of competition, with different training and skills enhancement methods. There is no source that tells us, definitively, who was the better home run hitter; that is a matter of judgment or value. Introducing value words multiplies the viewpoints, and admits other types of facts. For example, Mr. Bonds hit his 762 home runs in 9,847 at bats, a rate of one home run per 12.91 at bats. Mr. Ruth hit a home run every 11.76 at bats; Mr. Aaron, one every 16.8 at bats. All three hit home runs at a less frequent rate than Mark McGwire, the all-time leader in home run efficiency, who hit a home run every 10.61 at bats. Who was the better home run hitter, and what does this have to do with lying? We will probably be discussing the strengths and weaknesses of your position, the righteousness of your feelings, and the wisdom of a decision. These are all questions of value. You may think that we are discussing facts. Statements of value, such as “my client doesn’t believe this transaction is worth more than $50,000.00,” are excluded from the definition of misrepresentation in most U. S. jurisdictions. In many cultures, it is assumed people will “puff,” oversell, undervalue, posture, and otherwise haggle over the value of a claim, position or course of action. In many other cultures, such approaches are considered gauche or rude. That, in and of itself, is a cultural expression of the value of certain behaviors. The truth is, I can’t reliably tell if you are lying to me. I wasn’t there, I don’t have all the facts, and it’s not my place to pronounce a judgment of value. I don’t know if your client really won’t pay, or accept, a penny less or a penny more. The law and custom may permit you to make statements of value or intent with regard to the negotiation than you and I both know are not completely honest. In the end, I really don’t care if you lie to me. Please don’t ask me to lie for you, however, by saying “tell them I’ll never pay more than $100,000.00; but I’ll go to $110,000.00 if it will settle.” How about we work together on another way to deliver the message? My goal is to help you frame and conduct your communication with your counterpart in a way that is efficient, maintains your principles, and maximizes settlement opportunities. No lie. Safe travels. I look forward to seeing you. © 2017 Jeff Jury