As with many other programs, attorneys invent tactics to use the mediation process for purposes other than which it was designed. This article is not meant to indict tough negotiators. It is meant to explore and discuss tactics that are considered in bad faith in the mediation setting. These include conduct that amounts to misrepresentation of intentions and objectives. It is where parties or counsel arrive at mediation with motives other than achieving a resolution of the dispute. This occurs when the offending party agrees to mediation leading the other party to believe that an honest effort will be made toward reaching agreement. The unwitting party arrives prepared to explore the interests of both sides and attack the conflict in an honest attempt to bring about a win-win resolution, or at least compromise as necessary to resolve the conflict in a manner that makes sense to disputants. If the other side is insincere in approaching the negotiation, there is room for exploitation to take place.

1. Using the Process Solely to Conduct Discovery:

It is well known among trial attorneys that some will use processes designed for settlement as a further opportunity to conduct discovery. The Judicial Arbitration process comes to mind. Since the award is subject to rejection, some will approach that process with the idea they will use it to see what they can learn about the other side, not to analyze the information for purposes of settlement but to formulate a strategic plan for trial. They have no intention of accepting the award no matter how well thought out it is. Mediation appears to be used on occasion in the same manner. The offending party has no intention of negotiating a settlement. They arrive at the mediation with the idea they will play a game, giving the impression they are negotiating in good faith but actually using the opportunity to gather information that they may not have been able to obtain through discovery.

2. The Set Up:

In addition to obtaining information that the other side would not have given up except for their desire to reach agreement, the offending party will play along until they believe they have gotten the other side to concede as much as possible in hopes of obtaining a settlement. They will then end the mediation. Later they will bring up the last offer made by the other side to begin another negotiation, usually at a mandatory settlement conference. This criticism is not directed at all parties who continue negotiations after a mediation fails. We know that settlements are not reached at every mediation. The reason the tactic described above is untoward is that the offending party is hiding the fact they have not intended to act in good faith. They have unfairly exploited the other side by feigning a true interest in early resolution of the dispute. This tactic is particularly offensive in that the mediator becomes an unwitting tool in this fraud, if not aware of what is going on. Mediators should be watchful of this situation and guard against it as it will erode the integrity of the mediation process similar to the way in which Judicial Arbitration has been viewed in some respects.

3. Without Full Authority:

Another similar tactic is used by some who also come [to] the mediation absent the intent to settle. Their purpose is to drive the other side to significant compromise and then abruptly end the mediation by announcing they have reached the extent of the authority given to them to settle. Despite that may have become apparent during the negotiation that a greater compromise on their part is appropriate, they will offer no more compromise, asserting their hands are tied. This is similar to the circumstance described in the preceding section. The fact is the party did not arrive with the intention to settle but to grind the other side to reach the greatest compromise possible at that point only to use this later on. Again, it’s not the hard negotiation that is offensive, it is the fraudulent nature of the activity and the use of the mediation in the scheme, that is distasteful.

4. Increasing the Cost to the Other Side:

There are cases in which the tactic of one side is to drive the other out of the suit by escalating the cost of the litigation. This is one in which no stone is left unturned when it comes to discovery, motions and other processes that increase the cost of the litigation. A tactic to be aware of with respect to mediation is where this same party agrees to mediation but has no intention of attending with a desire to settle. Their intent is to incorporate one more process into the action to drive up the cost of the litigation for the other side hoping to weaken them into eventual submission.

5. Intimidation Tactics:

A tactic similar to that described above is where one side agrees to mediation but intends to use the forum solely to intimidate the other side. They intend to dominate the time to berate the other side and use every opportunity to "grandstand," attempting to intimidate the other side with threats.

6. Conclusion:

There is sometimes a fine line between hard negotiation and bad faith tactics. There are negotiations that fail despite that both sides are acting in good faith. The criticisms outlined here are not directed at these situations. It [is directed] where there is a misrepresentation of sorts going on where one side has a hidden agenda and no intention of reasonably exploring ways to resolve the dispute. The line between the two is sometimes difficult to identify. However, with experience, mediators can usually identify when the tactics have crossed the line. What should be done in this event? First, the mediator may want to give the side suspected of this conduct the benefit of the doubt. The best approach may be simply to call a caucus and explore with the attorney and party suspected of bad faith, what their true intentions are. Will the mediator get a confession? Likely not. However, he or she will likely receive sufficient information from the verbal response and physical reaction, to have suspicions confirmed or not. If it become[s] apparent to the mediator that the tactics have been in bad faith, is there hope they can reform the offending party during this caucus? Likely not. Should they try? There is always hope. If the tactics continue, however, it is probably best, to maintain the integrity of the process, to guide the mediation to a close. This should be done in the most diplomatic way possible under the circumstances. Despite that the mediator may be offended at being used as a pawn, the number one rule is to maintain the mediator’s neutrality, poise and diplomacy.