From Gladiators to Counselors

This article discusses the mediator’s role in ensuring process fairness. It focuses on how mediators may help shift attorneys from negotiating competitively to collaborating to improve mediation outcomes.

Ensuring process fairness is central to the mediator’s role,1 but mediators are often challenged with ensuring fairness in the presence of gladiatorial lawyers trained to defend and protect their clients’ best interests. Mediators who are not sufficiently prepared to counterbalance lawyers’ adversarial behavior in mediation inevitably place the fairness of the mediation process at risk.

This article reviews generally accepted negotiation tactics that lawyers employ and the mediator’s ethical duties in addressing them. It offers recommendations for mediators and the larger profession to promote fairness in mediation proceedings.

Generally Accepted Negotiation Conventions

Lawyers are portrayed primarily as advocates in popular culture and as described and prescribed in the Model Rules of Professional Conduct (Model Rules).2 They may be viewed as gladiators fighting the good fight and defending their clients’ rights, a role underpinned by the advocate’s duty to keep client information confidential, even if confidentiality may be detrimental to others.3 This function serves well the adversary system, which “is best designed to produce truth and justice by providing for the presentation of two opposing arguments—the evidentiary presentations of ‘facts,’ and the highly contested and partisan claims of right, truth, and desert.”4 While this focus on an adversarial model works in litigation, it may lead to challenges in mediation, given that the “candor to the tribunal” truthfulness standard applicable in proceedings before the court does not apply in mediation.5

Model Rule 4.1 allows for a certain level of dishonesty in negotiations, so long as the statement does not concern a material fact. The rule’s comments provide:

[1] A lawyer is required to be truthful when dealing with others on a client’s behalf, but generally has no affirmative duty to inform an opposing party of relevant facts. . . .

[2] This Rule refers to statements of fact. Whether a particular statement should be regarded as one of fact can depend on the circumstances. Under generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statements of material fact. Estimates of price or value placed on the subject of a transaction and a party’s intentions as to an acceptable settlement of a claim are ordinarily in this category, and so is the existence of an undisclosed principal except where nondisclosure of the principal would constitute fraud. . . .

Based on Rule 4.1, lawyers may ethically avoid disclosing relevant facts unknown to the other party and make immaterial false statements under the premise that such statements fall under the auspices of generally accepted negotiation conventions.6 Thus, lawyers may bend the truth or omit information to gain a tactical advantage in mediated negotiations.

A prime example of a generally accepted negotiation convention is the use of puffery. In first-year contracts courses, law students are taught that puffery is an exaggeration, often vague, used to boost the appeal of an offer.7 “Legally, the most significant characteristic of ‘puffery’ is that it is a defense to a charge of misleading purchasers of goods, investments, or services . . . .”8 Black’s Law Dictionary defines “puffing” as “[t]he expression of an exaggerated opinion—as opposed to a factual misrepresentation—with the intent to sell a good or service.”9 The line between a puff and a factual misrepresentation is measured from the perspective of the ordinary consumer of the goods and services. In other words, would ordinary consumers of goods and services take the statement seriously?10

Mediators must be on high alert for less-than-honest negotiation tactics directed at other parties and at mediators themselves, who are owed a standard of truthfulness lower than the candor owed to a judge or arbitrator. The point at which tactics such as puffery become unacceptable depends on the context of the negotiation, and the culture and experience of the negotiation participants.11

Mediation participants are often court-ordered to attend mediation as part of the litigation process, so they frequently do not understand that facts discussed in mediation may not be the same as those presented at trial. The context for exaggeration or the use of non-material untruthful statements, such as opening with an extreme anchor point, is central to determining whether the statement may be perceived as unethical. For instance, most consumers are aware that a used car salesman may use puffery to persuade a prospective buyer to purchase a car. But pro se litigants participating in court-ordered mediation may not understand that puffery is allowed in court-ordered mediated negotiations.

Culture also affects whether a generally accepted negotiation tactic is perceived as an unethical trick. Cultural differences may affect how authority, autonomy, gender, risk, and long-term gain is perceived and acted upon during mediation.12 For example, some countries require the “candor to the tribunal” standard of truthfulness during mediations.13 Lawyers in these countries are “prohibited from providing mediators with inaccurate information about any matter.”14 Thus, cultural perspectives on mediation may result in the misperception of otherwise conventional norms. Research has also shown that experience influences whether a mere puff is taken as true. Young adults, for instance, have been found to misinterpret puffery in advertising as factual “55 to 80 percent of the time.”15

Generally accepted, customary conventions used by lawyers during negotiations under the guise of mere puffery include exaggerated proposals, the distortion of reservation points, threats, false demands, and the exploitation of reciprocity norms.16 Mediation, however, often includes unrepresented parties who have little knowledge or experience with the process, especially when mediation is incorporated into case management by court order. If a participant does not understand generally accepted negotiation conventions, is stretching the truth to get a favorable outcome during mediation ethical? What standard of truthfulness should mediators require to ensure a fair process?

Mediators must grapple with these types of questions and be comfortable exploring whether a negotiation tactic is fair, given the context, culture, and experience of the participants. The fairness question is informed by the mediator’s ethical duties related to a lawyer’s use of negotiation strategies during mediation.

The Duty to Assess Appropriateness

Few lawyers are trained in mediation as part of their legal education, so as part of the mediator’s ethical duty to ensure a fair process, mediators will at times have to coach lawyers on the founding principles of mediation practice.17 These principles are enshrined in the Model Standards of Conduct for Mediators (Model Standards) and include, but are not limited to, fairness of process, party self-determination, confidentiality, and competence.18 The Model Standards provide the authority, and arguably require, mediators to coach attorneys in their roles as mediation advocates, as opposed to litigation advocates. In this regard, mediators should be mindful that the Model Rules for lawyers—drafted as ethical guidance for gladiators battling for clients in litigation—do not provide adequate guidance for lawyers advocating for clients in mediation.19 However, the Model Rules are not the only source of guidance for ethical behavior for attorneys. The Model Rules “presuppose a larger legal context shaping the lawyer’s role” and “do not, however, exhaust the moral and ethical considerations that should inform a lawyer. . . .”20 In addition to coaching lawyers on the benefits of legal problem-solving, mediators play a significant role in informing lawyers of the moral and ethical considerations of using negotiating tactics and tricks in mediation.

Model Standard VI: Quality of Process

As stated above, ensuring process fairness is a mediator’s central role. Whether a process is fair involves the participant’s subjective experience as much as the objective outcomes of the mediation, referred to, respectively, as procedural fairness and substantive fairness. Participants evaluate their mediation experiences and mediation outcomes based on the rules, standards, and guiding norms of the mediation process to determine whether justice has been served through their mediated agreements.21

Procedural fairness. Procedural fairness refers to a participant’s perception of whether the processes employed to arrive at outcomes are fair. Participants assess procedural fairness according to whether (1) there was an opportunity to tell a story, (2) the participant felt heard, (3) the participant was treated fairly, and (4) the participant was treated with dignity and respect.22 “[P]arties’ assessments of process fairness are considered important measures of the quality of dispute resolution procedures and are related to parties’ compliance with agreements as well as their views of the legal system and its legitimacy.”23 Thus, ensuring procedural fairness promotes longer lasting settlements that are less likely to lead to disputes over mediated settlement agreements.24 In other words, procedural fairness is a major factor participants use to weigh whether substantive outcomes are fair.

Substantive fairness. Substantive fairness refers to whether the participant perceives that he or she has received a fair distribution or equitable value of the bargaining surplus or available benefits. Whether the outcome is deemed substantively fair usually depends on principles of equality, need, equity, and generosity.25 Equality espouses the idea that everyone should receive the same or comparable benefits. Need, also referred to as the “compensatory” or “redistributive” principle, assumes that the needier should receive more of the benefits. The equity principle ties distribution to contribution; it is the notion that resources should be distributed pro rata based on relative contributions.26 The generosity principle holds that the outcome achieved by one party should not surpass the outcome achieved by others.27

Effect of perceptions of fairness. As part of ensuring a fair process, mediators must understand the participants’ perceptions of fairness. This requires knowledge of power dynamics and social inequities that may be at play. A participant’s place within a social hierarchy has been shown to affect perceptions of procedural fairness, and these perceptions, in turn, affect the judgment of substantive fairness. For example, procedural fairness is more important and influential for those who are vulnerable and have a perceived lower social status. Such participants attend to procedural cues as a coping mechanism to help them deal with uncertainty regarding outcome fairness; for these people, strong procedural fairness reduces the influence of outcome favorability on their perceptions of substantive fairness and whether justice has been served.28

Mediators should assess both procedural and substantive fairness throughout the mediation process, being mindful of how power and social status may affect perceptions of fairness. Ensuring a fair process enhances participants’ abilities to make rational and informed decisions, particularly for vulnerable populations.29

Promoting honesty and candor. The quality of process fairness increases through transparency. Thus, the Model Standards provide that a “mediator should promote honesty and candor between and among all participants.”30 As part of ensuring process fairness, mediators must identify conduct that may jeopardize process fairness and take actions to intervene, “including, if necessary, [by] postponing, withdrawing from or terminating the mediation.”31

The mediator’s duty to promote honesty and candor may be at odds with the strategies of competitive lawyers representing clients in mediated negotiations. There is an inherent conflict between Model Standard VI.A., which extols the mediator to promote honesty and candor, and Model Rule 4.1, which allows lawyers to use generally accepted negotiation conventions. Lawyers may strategically time disclosures, make non-material misrepresentations, and intentionally not disclose relevant facts during negotiations. Without the mediator gatekeeping procedural fairness, the protections of confidential mediation communications could easily allow a lawyer to use unethical negotiation tricks that would otherwise remain undiscoverable.32 How, then, should a mediator resolve the dissonance between the standards of truthfulness in the Model Rules guiding lawyers and the Model Standards guiding mediators?

The answer is that the mediator must exercise her or his gatekeeping authority before and during mediation to ensure a fair process, including requiring candor when necessary. For example, the mediator may require candor where there are power imbalances, such as a pro se party negotiating against a skilled attorney advocate, or when the nondisclosure of a material fact would make an otherwise fair process unobtainable.33 Whether the mediator should emphasize the higher standard of candor should be driven by the mediator’s duty to provide a fair process.

The term “candor” in the mediation context is used to connote a degree of full and forthright disclosure that extends beyond the mere obligation to tell the “literal truth,” and it encompasses an ethical duty to ensure that the other parties to a mediation are suitably appraised of the facts and interests at play.34 As discussed above, attorneys representing clients in mediation are not obliged to act with candor toward the mediator or other participants. Unrepresented parties pose heightened duties for mediators, given their lack of knowledge about court and mediation processes, lack of knowledge of substantive law and procedure, and lack of negotiation skills.35 Thus, in advance of the mediation, the mediator should inquire about potential negotiating tactics that may be employed and emphasize a collaborative, problem-solving approach. When deciding which negotiation tactics to allow, a mediator should carefully consider the context, culture, and experience of the mediation participants and the degree to which the parties are aware of the facts and interests at play. However, even if the participants understand that generally accepted negotiation conventions may be at play, the mediator should still assess whether those conventions will impede a fair process.

Model Standard I: Self-Determination

In addition to ensuring a fair process, mediators have the duty to provide a process that promotes party self-determination and informed consent of mediated outcomes. Process fairness and self-determination are interrelated because individuals tend to perceive a process as fair when they participate in decision-making, are not coerced into making a decision, and have knowledge of the relevant information necessary to make a decision.36 “Self-determination is the act of coming to a voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome.”37 Self-determination allows parties to problem-solve and resolve disputes on their own terms, based on their own values and interests. Dispute resolution in mediation should occur “only if the people involved in the dispute choose resolution on their own and without anyone forcing their hands.”38

Too often mediations are not conducted with party self-determination at the core. Lawyers speak on behalf of their clients. Participants do not see each other because lawyers request caucuses, so the mediation is conducted via shuttle diplomacy. To address this situation, evaluative mediators with legal expertise can reality check participants based on predicted court outcomes.39 But adversarial mediation advocacy practices and overly evaluative modes of mediation reduce party self-determination, resulting in a process that is more like arbitration, without the due process protections.40

Self-determination is best viewed in degrees, on a spectrum from conceptual (also known as “formal”) to actual (also known as “substantive”).41 Self-determination requires (1) competency in decision-making, (2) lack of coercion or voluntary decision-making, and (3) informational knowledge. A mediation participant may make decisions with self-determination, clarity of mind, and voluntarily, yet still lack a true understanding of all relevant information needed to make a fully informed decision. Decisions based on inadequate information have been termed “autonomous,” are of low quality, and are closer to the conceptual side of the self-determination spectrum. Decisions made with all three components, including full awareness of all relevant information, fall on the side of the actual self-determination spectrum and are of a higher quality.42

Generally accepted negotiation conventions chip away at the quality of self-determination, especially in the presence of power imbalances. Mediators should promote honesty and candor in mediations because transparent information exchanges result in increased self-determination, which in turn influences perceptions of procedural and substantive fairness.

Model Standard V: Confidentiality

In addition to promoting party self-determination and fairness of process, mediators must also ensure the confidentiality of the process. Confidentiality is a foundational principle of mediation. It encourages parties to problem-solve without fear that their communications will later be used as evidence against them in court. “The assumption is that when parties’ communications are protected from public disclosure, they are more willing to engage in open discussions that will lead to the settlement of their disputes.”43 Pursuant to the Model Standards, a mediator must ensure that participants understand the scope of confidentiality and its limits.44 The Colorado Dispute Resolution Act, CRS §§ 13-22-307 et seq., allows disclosure of confidential mediation communications only for specific, narrowly defined exceptions. CRS § 13-22-307(2) lists exceptions for disclosure where all parties consent in writing and for communications that (1) reveal the intent to commit crimes or threaten child safety, (2) are required to be disclosed by statute, or (3) are relevant to prove the mediator’s willful or wanton misconduct.45

Mediators should be particularly concerned when confidentiality is used in mediation to exploit participants or to gain a tactical advantage at trial.46 If the mediator is not diligent in assessing fairness and self-determination, mediation could be used as a discovery tool or an opportunity for a fishing expedition. Mediators should act as gatekeepers of unethical negotiating tactics, as confidentiality protections make proving unscrupulous lawyer behaviors extremely difficult, if not impossible.47 Leonard Riskin once observed that lawyers typically act in accordance with “the lawyer’s standard philosophical map” rather than the “mediator’s philosophical map.”48 Therefore, mediators must remind lawyers which map will be used to guide participants through the mediation process.

Model Standard IV: Competence

Mediators may hesitate to address generally accepted negotiating maneuvers for fear that they may face the gladiator’s wrath. However, competent mediation practice requires an assessment of how such tactics influence the fairness of the process and party self-determination. Mediators must conduct the mediation with “the necessary competence to satisfy the reasonable expectations of the parties.”49 Competent mediators must have required training and experience, including competence in “cultural understandings and other qualities.”50 Thus, to meet competency standards, a mediator must understand power imbalances and cultural differences and be able to counterbalance negotiating tactics to ensure a fair process and party self-determination. If the mediator cannot competently address such matters, the Model Standards require mediators to take appropriate steps to address the situation, “including, but not limited to, withdrawing or requesting appropriate assistance.”51

Recommendations for Promoting Fairness

The following recommendations are offered to promote fairness in the mediation process. Some are directed at individual mediators, and some are aimed at the profession at large.

For Mediators

Mediators may be able to mitigate the negative effects of puffery and similar tactics by caucusing with participants before mediation to develop trust and assess participants’ knowledge of problem-solving negotiations and ability to empathize with their counterparts.52 Coaching sometimes takes time. “[C]ourts encouraging or ordering parties’ use of mediation should institutionalize sufficient time for pre-mediation caucuses as well as systems that provide for feedback and quality assurance.”53 Mediators should watch for competitive cues during the initial intake and discuss the differences between litigation and mediation and the benefits of a problem-solving approach before mediation. A simple telephone call before mediation to discuss the parties’ view of the dispute and their goals for mediation may reveal abundant information regarding negotiation strategies. With this information, the mediator could suggest interventions to promote a fair process and self-determination.

For instance, if a represented party intends to use a competitive negotiation style and a pro se party is unfamiliar with generally accepted negotiation conventions, the mediator might suggest that the pro se party consult with an attorney to prepare a strategy for the mediation. “[T]he use of pre-mediation and early caucusing [may] enhance parties’ trust in the mediator and the process, affirm that each party is a valued member of the group engaged in mediation, and help parties prepare for their participation.”54

For Law Schools

Lawyer training should start well before a pre-mediation caucus. Law schools should mandate mediation or mediation advocacy courses because lawyers often must represent clients in mediation as part of representing clients in court proceedings. Such courses should cover skills outside the traditional law school curriculum. For example, mediators possess the skill of conflict diagnosis and have knowledge of “strategic, structural, cultural, psychological, and cognitive barriers to resolution,” in addition to being skilled in applying appropriate interventions to overcome these barriers.55 Law school education typically does not teach lawyers these skills but focuses instead on one-sided representation of clients and zealous advocacy. Lawyers are also not typically trained to develop empathy for the opposing position’s side of the dispute.56 Law schools might take a lesson from mediation training, which has been shown to have a “de-biasing” effect on lawyers by training them to view a dispute from all sides and develop empathy. Further, lawyers with mediation training have been found to make fewer errors in advising clients on when they should settle.57 Empathy training may be exactly what lawyers need in this current era of social-political fragmentation.

For the Profession

Process fairness necessitates that the mediation profession be diverse. A mediation roster that reflects the population it serves will result in more marginalized voices being heard and more people who are willing to tell their stories during mediation. From the perspective of the procedural justice literature,

increasing the diversity of the pool of mediators should enhance marginalized parties’ willingness to perceive that they will be, and were, heard and understood, therefore increasing marginalized parties’ willingness to exercise voice and increasing the likelihood of actual understanding and trustworthy consideration—which may then reduce the likelihood of unjustifiably disparate outcomes.58

A New Standard?

With mediation increasingly incorporated into the litigation process, either voluntarily or by court mandate, the time seems right to reconsider the standard of truthfulness in mediation. Is fairness better served by maintaining the Model Rule 4.1 standard of truthfulness, or should the candor to the tribunal standard be adopted for mediation? Given the central role that mediation now plays in the justice system, it is difficult to find any basis in principle for distinguishing between the duties owed by lawyers engaged in mediation and those involved in adjudicative forms of dispute resolution.59 Perhaps “it is time (especially in this era of ‘alternative facts’) to revisit lawyers’ duties to be more truthful in negotiations (Rule 4.1) generally, as in court (Rule 3.3).”60

Conclusion

When facing the wrath of the gladiator, a competent mediator must take care to assess how generally accepted negotiation conventions may influence the fairness of the process and party self-determination. Mediators should begin this assessment at the intake phase; carefully assess power imbalances and the effect of social inequality during the mediation process; and intervene as necessary, “including postponing, withdrawing from or terminating the mediation.”61