Rosie M. Vivas passed away on July 8, 2019. You may better remember Ms. Vivas as Rosie Ruiz, the defrocked “winner” of the 1980 Boston Marathon. Race officials immediately became suspicious of Rosie’s victory when she crossed the finish line and had barely broken a sweat; she could not answer post-race interview questions about her training regimen; and other racers could not recall seeing her decked out in a bright yellow jersey during the first 25 miles of the race. Rosie joined the Boston Marathon field with just few miles to go in the race.
Not previously known within marathon race circles, investigation continued into how Rosie even qualified for the Boston Marathon. Rosie qualified by turning in a competitive time at the prior New York City Marathon. As if out of nowhere, Rosie ran the 26.2 miles faster than many world-class athletes in NYC. As it turned out, Rosie did not rise out of nowhere. Instead, she rose out of a NYC subway station near the finish line after riding underground most of the race. Unfortunately for Rosie, too many New Yorkers saw her on the subway in her running gear and confirmed her scam.
Well, even cheaters can atone for their famous misdeeds and then lead exemplary lives, right? In 1982, authorities charged Rosie with cheating a real estate company out of $60,000. While on probation, to make ends meet, Rosie sold cocaine to an undercover detective. Ugh!
Rosie Ruiz ranks high in the modern cheaters hall of fame. The sports world is replete with infamous cheating scandals. My version of the top three include the following, with honorable mention for Rosie Ruiz.
Bronze Medal: Lance Armstrong. For years, Lance Armstrong rode his bicycle invincibly over the French Alps leaving competitors miles behind in the Tour de France. When the stages hit the Alps, the best cyclists in the world strained while Armstrong appeared as though he was cruising along the beach.
More cogently, during this time, many world-class competitors addressed doping challenges (among them many valid claims) while Armstrong embraced the position of Mr. Clean who best all challengers through dedication and training. Apparently, Mr. Clean’s dirty little secret was that he, too, boosted his performance with steroids. It now appears that Armstrong used performance enhancing drugs during his reign as champ.
Silver Medal: Boris Onischenko. Having won medals in the 1968 and 1972 Olympics in the pantathlon, Soviet Boris Onischenko entered the 1976 Olympics among the favorites to take home gold. During the 1976 games, however, things came to a point for Onischenko during the fencing event in the pentathlon.
During an early epee fencing match, Onischenko recorded a hit or strike on an opponent when the competitors appeared separated. Onischenko promptly claimed a malfunction with his foil and changed out the sword. The foils, or swords, contain sensors at the tip which indicate and record hits on an opponent. Onischenko advanced and a few matches later Onischenko recorded another strike while retreating and nowhere near the opponent. Upon examination, Onischenko’s foil was found to be rigged with Onischenko able to trigger the sensor with a button in his foil handle. Absent the malfunction of this cheating system, Onischenko may have continued victorious for a few more Olympics.
Onischenko and the Soviets were disqualified from the pentathlon. Onischenko was barred from the sport for life. Onischenko earned the moniker “Disoniscehnko”. The Soviet Union denied any knowledge of or involvement with the intricate electronic wiring system installed in Onischenko’s foil. Drats, foiled again!
Gold Medal: 1919 Chicago White Sox. 100 years ago, the heavily favored Chicago White Sox took on the Cincinnati Reds in the 1919 World Series. Baseball was coming into its heyday as America’s sport. Unfortunately, fans of these teams and the betting public were unaware that 8 Chicago White Sox players had been paid off to lose the series, and lose they did. Mafia boss Arnold Rothstein’s gambling syndicate apparently made an offer the White Sox could not refuse.
This highest profile sporting event scam relied, in part, on the complete and perpetual silence of eight twenty-something year olds each just paid off in cash. Should we be shocked that this mass cheating endeavor came to light?
The scandal undermined the integrity of baseball itself while destroying the careers of all White Sox players including those not involved with the scam. Say it ain’t so, Joe! Forever more, the 1919 team from the Windy City would be known as the Black Sox. It took years for baseball to recover.
Cheating is by no means limited to the world of sports. While examples can be found everywhere from West Point Cadets breaching the honor system on unsupervised exams to wealthy parents recently cheating the college admissions processes, one area remains rich with cheating scandals: game shows.
The English version of Who Wants to Be a Millionaire suffered the most rudimentary cheater a few years ago. Contestant Charles Ingram planted audience members who would signal correct answers to him. Ingram would read aloud an answer as if debating whether he would select it. When he stated an answer among the multiple choices and heard his accomplice cough, Ingram knew he had the correct answer. Ingram coughed his way to the top prize.
Producers and directors of game shows have not been immune to cheating when ratings were at stake. In the 1950s, the game show 21 ruled the ratings. One contestant, Herbert Stempel, won countless times in a row. Unfortunately for Stempel, he was boring and nebbish. The producers, directors and even the sponsor, had to get rid of Stempel as ratings swooned.
Enter Charles Van Doren, a charismatic, good looking professor. Professors are really smart, correct? Surely the professor could beat Stempel in a game of knowledge. Indeed, anyone could beat Stempel if provided all the questions and answers in advance as the professor received from the producers and directors. After four exciting tied games, Professor Van Doren proved victorious and embarked on his own winning streak. Ratings soared.
When the cheating scam was unveiled, television networks dropped game shows left and right. Congress passed amendments to the 1960 Communications Act to start to address rigged game shows. Americans lost interest in and their appetite for game shows. It took ten years for game shows to creep their way back into being a tv staple. Imagine if game shows were gone forever after 21. No Paul Lynde in the center square. No B list celebrities extending their careers on Match Game. No recently married couples careening toward divorce court on the Newlywed Game. No Gong Show! I recognize how these references date me.
What common features can be found among cheaters? They all acted intentionally and knowingly to avoid rules. The original cheating deed itself was planned. Time and effort would be taken to skirt the rules and avoid detection. These schemes were no simple mistakes or misinterpretations of rules.
Further, all cheaters seek to be masters of short cuts. Why run for years in training for a marathon when you can simply look up what times the subway runs? Why spend countless hours in the library studying a myriad of topics when others simply provide the questions which will be asked (as well as the correct answers)?
Can the legacy of Rosie Ruiz and these other cheaters teach us anything about mediation? All cheaters acted knowingly and with intent. The cheating may have better ensured victory or a good result. However, even with a rigged system or outcome, risk remained. The risk of an unfavorable result may have been eliminated with the scam. It became immediately replaced with the risk of being caught. Each cheater still possessed potential exposure after the “cheat”.
Quite often, participants in mediation raise disputes narrowly as defined by claims in a lawsuit. A court can rule only on those matters and claims before it. By contrast, mediation may be expansive to allow the participants to address all risks for each party. A mediated settlement could address other business dealings between the parties and guide conduct to avoid future disputes. Relief may be available with services in kind, discounts or new business not available in court. Settlements could be structured to allow greater funds to flow to aggrieved parties rather than a lump sum payment. Mediation offers the flexibility and ability to address (and limit or eliminate) all present and future risks.
More instructive may be the point that cheaters seek short cuts. Many well-experienced mediation counsel quite often seek to take short cuts in mediation. These lawyers want to skip opening sessions in mediation with claims that “We know their position and they know ours.” Some lawyers even want to short cut their own presentations in individual caucus sessions and proceed directly to negotiations. As a mediator, I caution against taking these short cuts as they usually prove to be opportunities lost.
The opening session in mediation is almost a relic. Nonetheless, my experience is that much can be learned in those few minutes. In litigation, participants have virtually no opportunity to speak directly to an adversary. During mediation opening sessions, messages can be delivered in an unfiltered manner. Styles and personalities can be evaluated. Common ground may be found where all believed none existed. The personal dynamics between parties almost always changes, and most often for the better, after opening sessions. Give up that opportunity only after serious consideration.
I have never understood attempts to short cut the evaluative phase of individual caucus sessions. Make certain the mediator appreciates the nuances of a position so that the mediator can become your champion in the other room. Allow the mediator to test the theories and presentation as they most certainly will be tested by the adversary and judge if litigation continues. Allow the client to hear directly from the neutral mediator about the warts on a case or position.
As the mediator, I do not know where or how the opportunities for progress or even resolution will arise during mediation. I do know that they will present themselves. Skilled mediators will utilize information learned in all aspects of the mediation process to assist the parties to craft solutions. Mediators remain alert for such signals. Short cutting the process denies these opportunities.
We can all memorize subway routes to get to a destination. It takes real effort to do it correctly to achieve lasting success. Cheat yourself out of the process at your own peril.