Deception is one of the raw materials which drive negotiations between parties. Lawyers have been using this tool to a lot during litigant cases. This range of deception can vary from honesty, exaggeration, white lies, partial disclosure, silence as to the other party’s mistake, false excuses and fraud. It isn’t wholly unethical or illegal unless it is outright fraud. Even though the most skilled practitioners don’t approve of the practice of deception but it is still used by many attorneys to settle disputes and avoid trails in the court. Deception is an important part of our social framework, to distinguish right from wrong, maintain fairness and prevent harm. Like, every government uses spies and undercover agents to report on to the crimes of other countries and provides updates so that the government can catch criminals and protect the country. It is a form of deception too but it is morally and legally acceptable.
Our culture has civil liabilities and punishments for a crime for those who cross the limit of acceptability but where the laws are silent and parties can engage in the competitive strategies, deceptive techniques come into play that can drive motors of negotiations between parties as long as they aren’t fraudulent. Negotiations between lawyers are like a game of cards. They need to be the better player to win the game. It isn’t always about winning; it often means to get more in the bargaining process in favour of the client. Of course, the skilled tactic of deception cannot lead to material misrepresentation, because that would turn out to be unethical and in turn ruin the lawyer’s reputation.
Mediation allows the individual meeting of parties which is clocked with confidentiality. This way neither of the parties comes to know about what exactly the mediator knows about the other party and what has been hidden from the mediator. The mediator takes advantage of this during the conferences with the parties to use deceptive techniques to come to a middle ground and suggest a settlement. There is always a low risk of being caught with an act of deception. Mediators closely listen to the problems of the parties, take the form of the parties as the parties discuss their goals and aspirations, gain their trust, and gradually become the library of their personal information.
The mediator tends to act as a filter receiving information from the parties. The mediators orchestrate the negotiation movements by softening a threat or supporting arguments whenever needed to make the parties agree to the best settlement. It takes a series of steps to make the parties come to the point and gravitate to the main theme if the conflict. It requires fair manipulation and the mediators cannot rush or let parties rush into a point. Even so, if things start to get out of hand the mediator intervenes to smoothen the flow of the progress of reaching a settlement.
However, deception needs to meet the ethical challenges while the negotiation procedure takes place. It requires the third-party to be truthful throughout apart from the acceptable deceptive practices. Negotiators should always abide by the rules because rules are like the lifeblood of a lawyer. Deception can make easier settlements or bring in more settlement offers but later it can ruin the reputation of the negotiators for playing with the confidential information of the parties. He might be recognized for being untruthful. It is always best to play it with honesty and deceive the parties’ trust.