Dealing with differing perceptions of reality

During a mediation session where two spouses are trying to hammer out a divorce agreement, mediators say it is common for one spouse to assert a fact and the other to call the statement untrue.

Proclamations such as who helped the children with their homework or who was responsible for the family dog running away can unleash retorts that statements are lies.

Mediators say while they are uncertain about the amount of deception or lying that may occur in a session, they do not believe dishonesty is a major problem.

A mediator is not well-suited to know whether something is true or false, said Nancy Cross, mediator and managing partner at Cross Pennamped Woolsey & Glazier P.C in Carmel. Mediators don’t do their own investigation or discovery. Their role is to facilitate the process so the parties can work out their own settlement.

Meuser

Disagreements over fact and fiction are often really problems of perception. Individuals in mediation can recount vastly different versions of the same event primarily because they each experienced and saw the situation from their own perspective.

Consequently, the mediator’s job is not to determine who’s right and who’s wrong but rather to facilitate the conversation and get the parties to think about things in a new way.

Indianapolis attorney and mediator Ann Thrasher explained the parties do not necessarily have to agree on what is accurate to reach a settlement. Even though the couple may dispute who the better parent is, it does not have to prevent them from formulating a parenting time schedule.

Still, she noted honesty does have a role in mediation.

“To have a solid agreement that everyone is happy with, certainly being truthful is required,” Thrasher said.

No rule needed

Although being forthright and sincere are important, mediators see no need to craft new rules or add language to the existing Indiana Rules for Alternative Dispute Resolution.

Lisa Blomgren Amsler, professor at the Indiana University School of Public & Environmental Affairs, advocates for requiring participants to mediate or negotiate in good faith rather than putting an enforcement mechanism in place for honesty.

Hinshaw

Having a rule that would allow one participant to accuse the other of lying would open the mediation process to litigation, she said. Imposing rules on mediation that make sense in litigation jeopardizes the resolution process.

Mediators worry that a casualty of a “truth rule” could be confidentiality, which is essential to the mediation process. Once parties get into a dispute, they tend to quit communicating with each other, but being able to talk freely without fear of retribution can spark a conversation.

“Coming up with a rule where mediators need to report on honesty in general is just a bad idea because then lawyers won’t use the mediation process,” said Art Hinshaw, director of the Lodestar Dispute Resolution Program at Arizona State University Sandra Day O’Connor College of Law. Such a rule would chip away at confidentiality and create a situation where the mediation could not be impartial. “By asking mediators to be the truth police, you’re asking them to pick a side.”

Indeed, Cross believes the confidentiality of the mediation session likely fosters honesty. Participants may be more truthful when they are in mediation because what they say and admit will be kept private.

Court remedy

Situations involving parties who do not trust each other can make reaching an agreement more difficult, said Elodie Meuser, attorney and mediator at The Mediation Option. Neither participant believes the opposing side will abide by the terms.

Meuser gets over that hurdle by explaining to the parties any settlement they reach will be enforceable. Both Meuser and Cross pointed to the judicial system as providing the remedy for fraud.

However, a five-year study shows courts have been reluctant to upend mediated settlements because of accusations of fraud.

James Coben and Peter Thompson, professors at Hamline University School of Law, examined 1,223 mediation decisions from state and federal courts between 1999 and 2003.

In 55 cases, mediation participants told the courts their agreements should not be enforced because they were entered into through fraud or misrepresentation. This argument was successful only nine times.

Coben and Thompson interpreted the data as reflecting a willingness among judges to tolerate a range of adversarial tactics in the negotiation and mediation processes. The pair advised that although mediation is often billed as a conciliatory process, “the parties must retain their adversarial vigilance.”

Thrasher

Among the cases the pair studied was Glover v. Torrence, 723 N.E. 2d 924,933 (Ind. Ct. App. 2000). Tammy Torrence tried to get the mediated settlement on child support with her ex-husband, William Glover, set aside on the basis of fraud. The agreement was based on Glover’s statement that he made only $366 per week, but Torrence later discovered he had been earning nearly $500 per week.

The trial court agreed with Torrence. However, the Indiana Court of Appeals reversed in a split decision. The majority did not condone Glover’s actions but maintained Torrence was represented by an attorney during the mediation and she did not ask for documentation of her ex-husband’s income.

Judge L. Mark Bailey dissented, arguing Glover breached his fiduciary duty when he misrepresented his income.

Code of conduct

Rule 4.1 of the Indiana Rules of Professional Conduct highlights a gray area regarding truthfulness. While the rule mandates that attorneys should be truthful in their statements to others, a comment to the rule allows for a little puffery during a negotiation.

“I like to think lawyers appreciate the difference between misrepresenting a material fact and a negotiation strategy that involves hyperbole,” said Kevin McGoff, of counsel at Bingham Greenebaum Doll LLP

In an academic study, Hinshaw and Jess Alberts, professor at Arizona State University, presented 734 lawyers with a hypothetical negotiation where a client asked them to lie. Hinshaw, who noted lawyers are expected to have zero tolerance for dishonesty, was surprised to find 30 percent were willing to misstate the facts as requested.•