Mediation Is Not a License to Lie

In court its either the judge or the jury who are the fact finders. Judge or jury decides who wins, who loses. Lying and getting caught doing so in court can result in charges being brought against the liar and/or sanctions against an attorney. What's presented at court has to undergo discovery - a process in which the parties get informatoin with each other in preparation for trial.

Mediation is a negotiation between the parties. The mediator is neither judge nor jury nor factfinder.Although one hopes the parties are acting under a set of ethical rules and doing nothing more than bluffing or puffing up their stories - a mediator usually accepts what a party is saying as being their view of reality.

This does not mean that mediators do not see and/or sense more than that and so here's some thoughts for those preparing for and participating in mediatin sessions. Parties are able to ask questions and make requests for information. Then, and here's an example if documents are provided make sure they aren't just skimmed and put in a folder and only read at the mediation session - certainly don't leave them in the office. Read, digest, and trust but verify the validity of documents. If it's a note from a doctor - at least pull out a telephone book or other directory and verify the doctor exists and is in the field of practice claimed by a document. Read the contents - does what is written at least sound like it is from a doctor? Even when a document is passed across the table or thorugh the mediator digest what you are being given. Do not rely on a mediator - some will just not look at documents - and if they do they are not in a comfortable position to make any challelnges - nor is there, as far as I know, a requirement mediators question the validity of a document and bring it to the attention fo the parties.

Mediation is and never was a license to lie and on occasion mediators are called in front of a court because agreements have been reached in mediation caused thorugh the presentation of fraudulent information being used by one party in engotiating an agreement.

Also keep in mind that as a mediator I often hear one party in a private session tell me the other side just lied and if made too often and too ardently it may have the opposite effect - in either case it does not impact my pursuit of a dialogue and negotiation by the parties themselves.

Lying is not a good idea because it is often transparent, destroys good faith negotiation environments, and leads to further misunderstanding. As courts start to crack down on medation agreements reached through fraudulent presentation of information so parties have to consider the risk of being caught versus reaching an agreement reached by lying.