From of Gladiators to Counselors The Mediator's Role in Encouraging Attorneys to Problem-Solve, 0421 COBJ, Vol. 50, No. 4 Pg. 22

PositionVol. 50, 4 [Page 22]

50 Colo.Law. 22

From of Gladiators to Counselors The Mediator's Role in Encouraging Attorneys to Problem-Solve

Vol. 50, No. 4 [Page 22]

Colorado Lawyer

April, 2021


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 die 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 die fairness of die mediation process at risk.

This article reviews generally accepted negotiation tactics that lawyers employ and die mediator's ethical duties in addressing diem. It offers recommendations for mediators and die 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 die good fight and defending their clients' rights, a role underpinned by die advocate's duty to keep client information confidential, even if confidentiality may be detrimental to others.[3] This function serves well die adversary system, which "is best designed to produce truth and justice by providing for die presentation of two opposing arguments—die 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 die "candor to die tribunal" truthfulness standard applicable in proceedings before die 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 die 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 die principal would constitute fraud....

Based on Rule 4.1, lawyers may ethically avoid disclosing relevant facts unknown to die other party and make immaterial false statements under die premise that such statements fall under die auspices of generally accepted negotiation conventions.6 Thus, lawyers may bend die 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 die 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 die 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...

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