Mediators should be aware that the American Bar Association has apparently given its stamp of approval to the practice of “puffing” in negotiation, including caucused mediations:
Under Model Rule 4.1, in the context of a negotiation, including a caucused mediation, a lawyer representing a party may not make a false statement of material fact to a third person. However, statements regarding a party’s negotiating goals or its willingness to compromise, as well as statements that can fairly be characterized as negotiation “puffing,” are ordinarily not considered “false statements of material fact” within the meaning of the Model Rules.
Frankly this is way too nuanced for me, and I don’t think the ABA has done mediators and lawyers any favors with this “clarification”. Puffing good, lying bad–you be the judge.
(Thanks to Knight on Family Law for the link.)