Nearly all mediations involve parties that view the same facts in a very different light. But in a great many mediations, the parties go further: they are convinced the other side is not taking its position in good faith, but rather is knowingly lying or engaging in some nefarious scheme. It is, for example, all too common in a commercial mediation to walk into one caucus room and be told that the other side knows it is lying on a particular point, and they walk in the other caucus room and hear the identical assertion.
Why is this phenomenon so common? I think this is due, in part, to the fact that when there are strong emotions underlying a position, the parties just cannot believe someone can hold a contrary position in good faith. Another factor may be that parties unconsciously seek to quell doubts about their own position by convincing themselves the other side is not only wrong, but also acting in bad faith.
Whatever the cause, the view that an opponent is acting bad faith can be a serious impediment to settlement. It is much more difficult to make concessions and reach a middle ground with someone acting in bad faith. You would be giving some ground not just to an opposing view, but to someone acting immorally. It is also harder to shed feelings of insult, anger and other emotions if you believe the other person is intentionally causing those feelings.
So how do you deal with this? There is no magic bullet, of course, but I suggest two contradictory approaches, each of which can be effective in the right situation:
- Point out the extreme nature of a party’s belief. I have summarized a party’s view in this way: “So you believe that every single thing that the other person has said is all a complete lie, and they are really executing a scheme to do ________.” Sometimes putting it in such stark terms can jolt someone into recognizing at least some good faith on the other side.
- Point out why this makes settlement so much more inviting: I have summarized a party’s view on the other’s bad faith, and said: “Is this a person you want to keep fighting or going to court against?” Sometimes the recognition of how awful they consider the other person can cause a party to think they need to settle the issue and be done, or to decide that they don’t want to risk fighting this person in court.
While, as I said above, there is no magic bullet, I don’t think it advisable to try to avoid it or sugar coat it the issue of bad faith. If people believe the other person is acting maliciously, that belief needs to be listened to and reality tested so that people can honestly confront the nature of their dispute.