When I speak of mediation, I mean an alternative dispute resolution (ADR) process where counsel and their respective clients meet with a mediator for at least a one-day session to work toward a global settlement of their dispute. Sufficient discovery has been completed; some depositions may have been conducted, and the matter is close to trial. These tend to be cases with complex valuation issues or intractable back stories that prevent significant progress toward resolution. It is uncommon, but can occur, that counsel have such disparate arguments of law or fact that they have not found common ground. Often, difficult messages need to be communicated to one or both clients, and counsel need the assistance of the mediator for that purpose.
The euphemistic “reality check” can be routine for a retired judge. However, there is always a desire to communicate respectfully, especially in those situations when parties are firm in their positions and their individual recollections of the progress of the relationship are in conflict.
As we have progressed in this field, it seems that our cultural ambivalence about truth comes into play.
What Is “Truth” in the Context of Mediation?
In preparing one’s client, counsel develops a narrative with the client that may or may not be akin to reality, or in that sense, truth. Each side has its own perception of the marriage/relationship. Often that perception is clouded by guilt, or sociologically imposed expectations that one party or the other may not have met—or has met and is perplexed by the lack of recognition of it. The narrative may be informed by a person’s idealized retrospective. In many cases, that narrative become the client’s “truth.” Their storytelling seems to the other side to be complete fiction.
That “truth” is often met with a counter-narrative, which is diametrically opposed to the spouse’s narrative. While the mediator is there to facilitate resolution, their role is quite different from that of a court. Courts are charged with making findings based on evidence. Those findings inform equitable distribution (at least in ED states). The court will declare the “truth” in its findings. Sometimes the court will be persuaded by parts of a party’s narrative, but seldom does a court see things only in accordance with one party’s version of the marriage, Often the “truth” is that both parties are responsible for the end of the marriage. The risk that a party’s narrative may not be fully accepted by the court at trial and that the evidentiary “truth” may not align with the parties’ narratives often motivates or should motivate settlement in mediation.
It is always appropriate to caution parties that a court will have a limited time frame in which to assess the credibility and materiality of complaints regarding conduct. The short time frame and press of other business—and the court’s experience—may minimize the importance of the parties’ claims of fault and responsibility in the eyes of the court, leaving a result that is less than satisfying if a party expects the court to be outraged or shocked. That rarely happens. The fundamentals of a dysfunctional marriage are rather ordinary.
Counsel has a duty of candor to the tribunal, and mediators expect candor, as well. A mediator should be entitled to expect that counsel would not prepare their case one way for a mediator and substantially alter the story for trial. Parties in a marital relationship have a fiduciary duty to each other. While that duty is often disregarded, it abides. Mediators expect truth, and truth in mediation will mean that a party’s narrative has been objectively tested by counsel. In preparing clients for resolution, counsel might introduce the client to the concept of challenging their narrative. Once challenged, and confronted with risk, the client might appreciate the mediator as an agent of compromise.
Is Truth in Mediation a Fair Question?
Maybe not. In law school we are taught to receive information from our clients, but to test that information with proof. After all, at trial we need proof. We also need proof in mediation: about the nature and value of marital property, income, and needs of the parties and the family unit. Is the modicum of proof in mediation different? In the context of mediation, we must remember that while the Rules of Professional Conduct require counsel to be advocates, there is no provision requiring “zealous” advocacy in mediation.
There is also a need for objectivity, which can impact the ability to resolve the matter. Of course, the flexible and confidential nature of mediation allows for the adjustment of the narrative, so a party has the ability to moderate a position, particularly in the face of evidence, reflection, or compassion. The flexibility itself allows for an exercise of “our better selves” within the process.
Preparation of Clients for a More Objective View of “Truth”
In order to secure a positive result through mediation, careful preparation of one’s client and of exchanged and confidential submissions should be viewed as a process in and of itself. Often entrenched positions take hours to modulate. If the client is prepared with a range of acceptable outcomes (the “zone of reasonable” as coined by a colleague), then the client is also prepared to scale down expectations and understand where and to what extent compromise is palatable.
Preparing the client in this way for mediation is effective advocacy, and if the client is well-prepared, the efficiency of the mediation is enhanced. Counsel should prepare the client prior to the mediation to expect to be challenged and to expect to “give” on one or more issues. Hopefully “being heard” in a private, confidential arena will satisfy the need for expiation of position. It is also important for counsel to disavow notions of “control” either of the process or of the mediator.
Mediation should be a collaborative process toward resolution. That means that the mediator, counsel, and parties are available to be problem solvers. If one side is motivated to manipulate the other, it is likely that truth will be compromised and the resolution more difficult. It is not uncommon for a party to “hold out” an agreement on one asset, in the hopes of leveraging that issue against others. That methodology is fairly routine and a timewaster. It may be that the negotiation process is so imbued with old thinking that we will not be able to break away from it. While perhaps naive, it may be worth a try. Adult behavior may be relegated to aspiration.
Mediation is more likely to be successful if time limits are put on negotiations. Problem solvers can be respectful of the opinions of others while also being respectful of their time. Counsel also should consider whether there are collateral issues that may be meaningful to their clients but not essential to the effective settlement of the case. If brought up after the major issues are negotiated, not only will this approach slow down the mediation, it also may derail its success.
What Are Counsel’s Ethical Requirements to Produce “Truth?”
The attorney oath spoken at swearing in ceremonies for newly admitted lawyers includes promises not to do anything dishonest or to maintain or assist in maintaining an action that is “false.” While mediation is not an adjudicative process implicating candor to the Tribunal (Rule 3.3), Rule 4.1 requires truthfulness in statements of material fact or law to any third person. The rule follows the oath because of the position of public trust that attaches to the person admitted to the bar. In a world that seems to challenge the obligation to act at all times honestly, modeling that precise behavior is even more important for lawyers. Effective advocacy should include the spirit of honesty. Clients must know where they stand, what their risks are, and how empowered they are to chart their own post-judgment course by engaging in self-determination through mediation. Ethical representation of the client in mediation will incorporate truth.
We aspire to engage in a process with integrity such that the resolution engineered in the process has buy-in by all parties and minimizes the potential for post-judgment conflict. It is not always easy to get to that place but is worth the effort if it happens. Assisting parties in visualizing a future with no or less conflict has merit. It is high art.