In many mediations, one or both parties tell me that the other side is unethical and is lying about significant disputed facts. Attorneys often raise these accusations in the first caucus to demonstrate their support for their client.
More often than not, these accusations are unverifiable. There is insufficient evidence to effectively impeach at trial, and the context is very much “he said/she said.”
Unfortunately, there is almost nothing a mediator can do with this information. I cannot influence the other side by suggesting that they are a liar. Attorneys understand this dynamic and tell me not to share it with the other side because it will only inflame them.
The problem with lending a voice to your client’s belief in their own moral superiority is that they tend to hold onto this and even exaggerate it. They use it as a shield against acknowledging their own litigation risks.
There are a number of approaches mediators use to get past this obstacle to settlement. It usually involves explaining that jurors are not good at distinguishing liars from truthtellers. In some circumstances, I find it useful to explain that I hear these accusations in most of my mediations.
In my experience, most litigants are not deliberately lying, but instead have a very different perception or recollection of events. Either way, bringing these accusations into the mediation is more likely to undermine settlement than promote it.
I encourage attorneys to figure out how to de-emphasize these accusations at mediation. Rather than feeding your client’s unprovable accusations, attorneys should focus their clients on the provable. Make sure they understand the evidence and arguments the jury (and mediator) will focus on. In fact, you might even remind your client that there are risks of accusing the other side of unethical behavior.
Reference Jim Schleckser’s “The Secret Sign That Shows if Someone Is Unethical,” where he says:
“Based on my experience, there is one simple red flag that every unethical person shares in common: They are the one who accuse and worry about everyone else being unethical.”