Deception and Ethics in Mediation: Basic Tenets of Mediation

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Deception and Ethics in Mediation

One of the basic tenets of the mediation process is that, as far as possible, everything that is said is truthful. Under this assumption, the mediation process will be an attempt to resolve two different views of the truth. However, what happens when there is intent to deceive on the part of one of the participants, or worse yet on the part of the mediator? This is a complex issue that cannot be determined solely by considering the foundations of ethics or of the practice of mediation. Instead, the issue must be understood from a dual perspective of the ethical appropriateness of deception and its potential usefulness within mediation. Ethically, there can be no question – neither a Kantian nor a utilitarian ethical approach allow for the use of commonplace lies in mediation. However, from the perspective of human relationships, it must be accounted for that people do deceive, and that it is part of our communications and social fabric. Thus, there is a dual ethical position for deception in the mediation process – while morally it is wrong, pragmatically it is commonly used and may be useful for helping negotiating parties to come to a decision.

In order to clearly understand this argument, it is important to understand what deception is. A naïve understanding of deception is that it is simply lying, which is certainly included. However, there are a number of other elements of deception, as well. One formal definition of deception that could be used is “a successful or unsuccessful deliberate attempt, without forewarning, to create in another a belief that the communicator considers to be untrue in order to increase the communicator’s payoff at the expense of the other side (Gneezy 386).” This definition is useful because it includes a number of key characteristics for understanding deception. First, it is deliberate – that is, the deceiver is not simply misinformed or lacking in information. Second, is an attempt to create a belief in the other person; without this intent, it is difficult to say whether something is truly an expanse at deception. Third, it is an attempt to influence the outcomes of the decision, rather than simply being for no purpose or for some other purpose. Finally, the attempt at deception may be either successful or unsuccessful, and thus even if the negotiation partner figures out what information is being withheld, it is still incorrect. This definition can be extended by common knowledge examples of deception, such as lying actively; lying by omission; and manipulation of data and statistics. Krivis (1) identified a spectrum of deceptive practices that can be further used to understand this concept, including: “Honesty, Exaggeration, White lies, Partial Disclosure, Silence As to Other Party’s Mistake, False Excuses, [and] Fraud.” These types of deception are of course not mutually exclusive, but may be seen in combination with each other. Also, as Krivis (1) noted, many of these behaviors are common within our society and do not even pose a significant moral quandary for the majority of those that undertake them.

There are also distinct philosophical approaches to deception that address the ethical approaches and considerations. The two main ethical approaches to deception can be characterized as Kantian, or virtue-based, and utilitarian. In the Kantian view, lying is always wrong, because it violates the moral imperative (Alexander and Sherwin 396-397). That is, “lying is an offense to all humanity, and, most importantly, to the liar himself (Alexander and Sherwin 397)” because it promotes falsehood and uses the liar’s intellect in a debased manner. The utilitarian view is not as absolute, but it still does not cede that lying is an acceptable moral choice most of the time (Alexander and Sherwin 398). Specifically, the potential gain from the lie must be greater than the harm caused to society from the lie in order to be morally defensible. However,...
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