Mediation is really nothing more than a facilitated negotiation. The mediator is not making any decisions. It is up to the parties and their counsel to engage in a process of negotiation with the assistance of the mediator. Depending upon the format and stage of the mediation, there are discussions between the parties, between counsel, and between the mediator and both the parties and their counsel. Even though the negotiation process in a mediation is an informal process, there are some limitations. If counsel or his or her client goes too far, it could give rise to subsequent proceedings against the offending party and/or his counsel.
Both the common law and the Code of Professional Conduct frown upon lying in the context of the negotiation of a settlement of a dispute. However, not every “lie” is actionable. Some lies are OK. If the misstatement is mere “puffing” by the party or counsel, the law will look the other way.
