On Bullshit in Mediation

On Bullshit in Mediation

James E. McGuire

March 2005

            It happens.  Perhaps not in every mediation, but it is frequent enough that most mediators know that they will have to deal with it at some point.  Sam Hoar, my friend and colleague until his untimely death, had a special “Bullshit Guard,” an ear-shaped leather patch with those words printed in bold.  When needed, he would hook it over his ear with a twinkle in his eye, and then break out in a deep belly laugh when the party read the words and realized that he had been outed as a bullshit artist.  Some mediators are very polite, sublimate their feelings and never vocalize that they have been treated to it during the mediation.  Over drinks, of course, these same mediators can recount the stories and label it for what it was.  Other mediators detect it and name it, some times with circumlocutions and some times as directly as if they had borrowed Sam’s ear patch.  We know that it is not the same thing as an overt and direct lie.  We also know that that it is not the same thing as a sincere, but mistaken, belief of the truth of whatever the person is then saying.  So what is it?  Do we have a more polite term for it?  Why do people do it and what tools can the mediator put in the toolbox to deal with it when it is detected?

            When I decided I needed some help on this topic, I looked outside our field to see if there was expert assistance available.  I recommend for your reading pleasure and edification a short essay by the renowned moral philosopher and Professor of Philosophy Emeritus at Princeton University, Harry G. Frankfurt, entitled On Bullshit.  (Princeton University Press 2005).  Professor Frankfurt modestly describes his work as a tentative and philosophical analysis.  Like me, he is not interested in the rhetorical use and misuse of the term and concept, but rather focuses on what it is and what it is not.  His goal:  “to articulate the structure of its concept.”  Frankfurt at 2.

            Although Professor Frankfurt did not conduct a formal literature search, to my knowledge, this is pioneering work on a topic long overdue for focused attention.  He references an earlier publication, The Prevalence of Humbug, by Max Black (Cornell University Press 1985) that provides a useful starting point.  The reader knows intuitively that there are important differences between the terms:  “humbug” is genteel, quaint, and has slight overtones of being British. Bullshit is . . . well, “bullshit.”  We know it when we hear it and do not confuse it with humbug.  Nonetheless, we must start somewhere.

“HUMBUG:  deceptive misrepresentation, short of lying, especially by pretentious word or deed, of somebody’s own thoughts, feelings or attitudes.” (Black, as quoted by Frankfurt at 6).  I leave it to you to read the essay as Professor Frankfurt dissects this definition and then brings in Wittgenstein, the OED, Ezra Pound and Saint Augustine to develop a more nuanced definition.  For my purposes, Professor Frankfurt makes a key point when he observes that bullshit, like bluffing, is produced without concern for the truth.  Unlike a lie, the statements may not be false.  The truth or falsity of the statement is not important.   Influencing the state of mind of the listener is important, whether the listener is the mediator or the other party.

When one party says of the other, “They are lying,” most mediators will re-frame.  “We understand that from your viewpoint that may appear to be so; it is possible that the other side sincerely believes what they are saying because they see the world from where they stand.  I doubt that they are consciously lying.”  Usually left unspoken is the mediator’s inner voice which says, “Not lying, but it might be pure unadulterated bullshit.”     

Why do we believe they are not lying?  The answer may be because we think better of all people and may be in part because of the mediation process. Liars are concerned with the truth.  To lie effectively presupposes actual knowledge of what it true and a determination to articulate the opposite.  Mediation as a process is not conceived of as a truth-seeking engine.  The mediator is not empowered to determine the truth of what happened nor the more difficult challenge of then determining who was right and who was wrong based on the “true” facts.  Since the topic of who is lying and who is telling the truth is fundamentally uninteresting in mediation, it may make more sense for parties to spend time and energy on techniques that carry lower risks and may promise higher returns.

Does it provide lower risk and higher reward?  As quoted by Professor Frankfurt, the author Eric Ambler wrote of a father’s advice to his son:  “Never tell a lie when you can bullshit your way through.”  This seems to be sage advice.  Overt lies breach ethical boundaries.  More practically, an overt lie does great damage to a party’s credibility and negotiating strength if the lie is detected.  Bullshit, artfully done, does not suffer from these liabilities.

Because it can be done elegantly and need not be clumsy or malicious when done well, we pay tribute to it by labeling the speaker a “bullshit artist.”  Like other forms of art, beauty is in the eye of the beholder, but most people recognize the art form.  Professor Frankfurt notes that the person who follows Ambler’s fatherly advice has much more freedom.  “His focus is panoramic rather than particular.  He does not limit himself to inserting a certain falsehood at a specific point, and thus is not constrained by the truths surrounding that point or intersecting it.”  Frankfurt at 52.  Though this mode of creativity is less analytical and less deliberate than lying, it may not be easier.

“What bullshit essentially misrepresents is neither the state of affairs to which it refers nor the beliefs of the speaker concerning that state of affairs.”  Frankfurt at 53.  “The bullshitter may not deceive us, or even intend to do so about the facts or about what he takes the facts to be.” The essence of his deception is his intent:  what he is up to; what his true interests and objectives are.

So why would a party attempt to deceive as to his true interests and objectives?  To understand why we do what we do may benefit by looking to science, and not just philosophy.  Accepting Professor Frankfurt’s provisional and tentative definitions, I turned to the recent work of Robert Trivers, an evolutionary biologist.  He was profiled in an article in the Boston Globe on March 27, 2005.  Trivers is generally recognized as making a seminal breakthrough in the conceptual framework for asking questions about why we behave how we do behave.  He published papers in the 1970s linking genetics to behavioral biology.  That was part of the foundation for work of E.O. Wilson in the field of sociobiology and the work of Richard Dawkins in “The Selfish Gene.”  In his more recent work, Trivers reports that deceit is part of the human condition and has great value in evolutionary strategies.  Since it does, counter-strategies to able to detect when people are lying have also developed. The keen ability to detect the slight tic that betrays the lie is a human skill not restricted to world-class poker players.  So Trivers proposes that a counter-strategy to detection has also developed:  self-deception.  “If we don’t know we’re lying, then we won’t act like we’re lying, and are more likely to get away with it.”  Robert Trivers, as summarized in the Boston Globe at K-4 (March 27, 2005).  In other words, bullshit.  It works because it is less likely to be detected for what it is and what it conceals.  We may be close to the Truth when science and philosophy agree.

So if you detect it, what does it signify?  It may signify that the speaker has distanced himself from the facts to avoid telling the truth or lying.  But this may also include distancing himself from the ultimate fact: what he wants and why he wants it.            

The artist may be more interested in the art than the outcome.  Incapable or unwilling to deal with the facts, the ultimate claim may be presented simply and sincerely: “This is what I want.”  Yet the ultimate truth, to know yourself, may be the most difficult to master.  In that case, as Professor Frankfurt concludes, “sincerity is itself bullshit.”  Frankfurt at 67.

            So what is the mediator to do?  Recognize it for what it is.  Make no judgment that it is wrong; it is just another strategy.  Yet the skilled mediator will also recognize that this particular type of artist may still need help in discerning what really is in his best interests.  After all, that is why they came to you.