At one mediation I heard counsel accuse the plaintiffs of lying and engaging in “litigation lottery,” hoping for a big payoff. This mediation was over before it began. At another mediation, counsel for one party repeatedly accused the other party of lying under oath. That mediation resulted in a settlement favorable to the party making the accusation.
So, what’s the difference? Should the opening session be conciliatory or adversarial? Like most answers to broad questions, it depends.
In the first case, the accusing lawyer was addressing a large group of plaintiffs and attacking their integrity by impugning their motives. What he intended to demonstrate was that there was no factual or legal basis for their case but instead lost any chance of communicating by jumping to a jury argument that he could not possibly prove.
In the second instance, the accusation was made through the juxtaposition of the opponent’s deposition testimony and the contemporaneous documents on PowerPoint slides. The point was to drive home for the parties and counsel that if the case went to trial, the primary (only) witness for one of the parties would have no credibility.
It would be a mistake for an advocate not to raise issues of witness/party credibility if those issues are important to resolution but it is equally important to find a way to make the accusation about the specific lie and not about the opponent’s character.