Negotiating in bad faith amongst other things presupposes that the party engaged in that act does not desire a resolution.
Valentino Buoro
Two major events take place every year the calendar runs full circle. First is the season of Christmas when Christians all over the world celebrate the birth of Jesus Christ. Over the years, the commemoration has assumed the status of an all-inclusive festivity where billions of the world’s population celebrates irrespective of religious persuasions. Interestingly, mediation and other forms of the alternative dispute resolution process draw a strong link with all religious faiths. Those who seek to walk In the ways of the Creator of the Universe are taught by their holy scripts to be truthful, live in harmony with their neighbours and develop the spirit of forgiveness. These are the same foundations of mediation, conciliation, etc.
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It is an indisputable fact that mediation succeeds only when parties tell the truth. Any mediation session premised on falsehood fails. It is best to tell the truth of all that led to a dispute and to apologize for any shortcomings than to paint an untrue position and hope that a settlement can be reached. A party who tells a lie in order to persuade the mediator has achieved nothing; because the decision to settle or otherwise rests on the shoulders of the very party against whom the lie has been told. It is for the foregoing reasons that whenever the subject matter of mediation is discussed, the point must be made that in essence mediation is a way of life.
True, formal mediation is a taught skill. However, what are taught are largely an upgrade of communications management skills and the escalation of ethical standards that inhere in every responsible persona. I stand to be corrected.
The second cyclical event is that which heralds the beginning of a new year. New Year Day is an annual opportunity to reflect and begin again in all things we seek to achieve as mortals. Done properly, every man desires the affection of others with a view to seamlessly achieving his every day yearnings. Where this craving runs into a hitch, the mediator is best positioned by his skills to untie the unpleasant knots.
The job of a mediator can sometime assume proportions that task the practitioner’s patience, tact and worldview. You sit across the table facilitating a dispute between two or more parties and right on your mind is the consciousness that you must be neutral, non-judgmental and empathic.
However as you listen to parties tell their stories it sometimes becomes obvious that a party is telling outright lies. You see through the many inconsistencies in their narrative. Bad as you feel about this, it is not your duty to challenge these stories. The burden is on the party who feels hurt to point these out or decline a settlement.
In the world of alternative dispute resolution there is a term of art known as negotiating in bad faith. Negotiating in bad faith amongst other things presupposes that the party engaged in that act does not desire a resolution. He is at the mediation table only to play for time. Reasons for this are that delay of justice is in his favour or he desires that the matter be lodged in the courtroom so he can explore legal technicalities.
According to Diane Mainville a Canadian Mediator, ‘’negotiating in bad faith means misleading another, entering into an agreement without the intention or means to fulfill it, intentional dishonest act (i.e. not fulfilling obligation or commitment), or violating basic standards of honesty with others.
Those negotiating in bad faith are “merely going through the motions” for appearance’s sake. They may even consciously use strategies to derail the negotiation. It is not possible to know what someone’s motives truly are. Motives and intentions are “invisible” and often include a mix of good, and bad. Therefore, the challenge is not so much how to define it, but how to recognize bad faith’’.
A colleague once told the story of a young widow who came to mediation alleging that she had been so badly treated by her in-laws and step children. She painted a very emotive picture of mental and emotional torture. She recalled how she had suffered with her late husband to build up a rich estate. She claimed she had practically been dispossessed of all that was her due. However when the respondents began their own side of the story, it was a stunned mediator who battled to keep the sanity of everyone in the room.
The complainant had become combative and disruptive. She would hear of no rebuttals of her bundle of lies; inclusive of the fact that she was actually the third wife of the deceased who literarily stole into the family to enjoy what she never sow. The mediation did not resolve the dispute. The complainant would not accept that any share of the estate of her deceased husband be given to a child the man had out of wedlock. She said she did not recognize the child who incidentally was born before her own marriage to the deceased. Both extended and immediate families of the deceased recognized the child. Would you consider the foregoing narrative a good faith negotiation?