ICYMI:
John W. Cooley, Meditation Magic: Its Use and Abuse, 29 Loyola University of Chicago Law Journal 1 (1997). Here is the introduction. (Footnotes omitted)
Readers turning to this article thinking it to concern mediators' use of the secrets of black magic, astrology, the paranormal, witchcraft, voodoo and the like, will be sadly disappointed. Also, those who are seeking an article extolling solely the virtues of mediation probably had in mind an elegant piece with a title similar to the one above. This article will not meet such expectations. The present article is about only one thing--deception. More specifically, it discusses types of deception and addresses whether they are acceptable or unacceptable forms of persuasion in mediation. Further, it analyzes in detail how to recognize types of deception, how to deal with them, and how to use acceptable types of deception considered from both the perspectives of an advocate in mediation and of a mediator. Perhaps this article is about anything the reader wants it to be. After all, it is about what magicians do. Why magicians? Because one can learn more about deception and illusions in mediation by examining magic and the role of the magician than by studying any other single field of endeavor. One commentator, Robert Benjamin, agrees. Robert Benjamin, a nationally recognized mediator and teacher of mediation, negotiation, and conflict management theory and skills wrote: Mediators, like trickster figures, are in some measure illusionists … Their use of deception and strategic intervention is calculated not for self-gain at the expense of conflicting parties but rather for the parties' benefit. As a result, ideally, the parties learn, but at the very least they survive the conflict. All human beings, and especially mediators, deceive, manipulate, and even sometimes lie. That is a given. It is the purpose of the deceit that must be examined . … If … the deception is designed to shift and reconfigure the thinking of disputing parties, especially in the midst of conflict and confusion, and to foster and further their cooperation, tolerance, and survival, then the deception may well be a "noble lie." Purists may be perturbed ethically by what they are reading, and may wonder how deception could possibly have any appropriate place in a serious discussion about mediation. They may even consider closing this volume and not reading further, or, heaven forbid, ripping out the pages and trashing them. They should refrain from doing so and continue reading. Readers should not be offended or shocked by the contents of this article. Suspension of disbelief is required. Consensual deception is the essence of caucused mediation. It is rare that caucused mediation, a type of informational game, occurs without the use of deception by the parties, by their lawyers, and/or by mediators in some form. This is so for several reasons. First, a basic ground rule of the information system operating in any caucused mediation is that confidential information conveyed to the mediator by any party cannot be disclosed by the mediator to anyone, with narrowly limited exceptions. Mediators' duty not to disclose confidential information has two important consequences. One consequence is that each party in mediation rarely, if ever, knows whether another party has disclosed confidential information to the mediator. A second consequence is that if confidential information has been disclosed, the nondisclosing party never knows the specific content of that confidential information and whether and to what extent that confidential information has colored communications coming to the nondisclosing party from the mediator. In this respect, each party in a mediation is an actual or potential victim of constant deception regarding confidential information--granted, agreed deception--but nonetheless deception. A second reason that caucused mediation necessarily includes deception is that the parties and their counsel normally are engaged in the strategies and tactics of competitive bargaining during all or part of the mediation conference. That is, the goal of each party is to get the best deal for themselves. These competitive bargaining strategies and tactics are layered and interlaced with the mediator's own strategies and tactics to get the best resolution possible for the parties--or at least a resolution that they can accept. The confluence of these initially unaligned strategies, tactics, and goals creates an environment rich in gamesmanship and intrigue. Such an environment is naturally conducive to the use of deceptive behaviors by the parties, their counsel, and even the mediators. Actually, mediators are more likely to use deceptive behaviors because they are the conductors--the orchestrators--of an information system specially designed for each dispute, a system with ambiguously defined or, in some situations undefined, disclosure rules in which mediators are the chief information officers with near-absolute control. Mediators' control extends to what nonconfidential information, critical or otherwise, is developed, to what is withheld, to what is disclosed, and to when disclosure occurs. A third reason for the presence of deception in mediation is that the information system manipulated by mediators in any dispute context is itself imperfect. Parties, rarely, if ever, share with the mediator all the information relevant, or even necessary, to the achievement of the mediator's goal--an agreed resolution of conflict. The parties' deceptive behavior in this regard--jointly understood by the parties and the mediator in any mediation to fall within the agreed "rules of the game"--sometimes causes mediations to fail or prevents optimal solutions from being achieved. The purpose of this article is quite simple--it is to expose and explain the true magic of caucused mediation. Its separate objectives are: (1) to assist lawyers in identifying and classifying deceptive strategies and tactics in the layered processes of negotiation and mediation, be they serving as advocates or as mediators in mediation; and (2) to generate interest among scholars and practitioners to begin exploring and identifying the ethical limits of acceptable deception as practiced by mediators and mediation advocates. To accomplish these objectives, this article will first explore some general aspects of "magic in mediation," including truth, deception, and the magicians as problem solvers. This article next examines the "Secrets of Blackstone" and employs them as a metaphorical model for dissecting, identifying, and classifying the effects, methods, and showmanship aspects of classical magic. Finally, in the "Grand Finale" the article draws on the results of the prior analysis in Part III to distill the critical issues relating to the ethical limits of acceptable deception in mediation. Before going further, it is appropriate to define some terms used throughout the article. The term "deception" in its broadest sense, extends from "mild exaggeration" on one end of the deception spectrum to "lying," "intentional misrepresentation," and "fraud" on the other. Magic, as used here, means the same as Magician Harry Blackstone's version: "pure psychology--applied in the right place" with misdirection, a type of deceptive stratagem, being its "fundamental principle." The terms "magic" and "deception" are interchangeable throughout this article. Acceptable or constructive deception will refer to the kind of deception that currently appears to be within the "rules of the game" in mediation. This article makes no definitive judgment, however, as to whether such deception types should be deemed ethical behaviors. Difference of opinion among readers on the ethical propriety of some of these deceptive behaviors, although not all of them, probably exist. Unacceptable or destructive deception will refer to the types of deception that most, if not all, readers will agree are outside the game rules for mediation and unquestionably unethical, although there may be some disagreement among readers.
Recent Comments