Should Attorneys Tip Their Hand at Mediation?

I have never been convinced that there are as many tactical "save it for the litigation later" secrets worth keeping from opposing parties in mediation as some litigators seem to think. Now, as mediator, of course I will not disclose any information without permission. But I am just talking about what the parties don't want other parties to know at a mediation.

Of course, it may make sense sometimes for a party at a mediation to not tell the opposing party they messed up their expert designation, for instance. That's not what I'm talking about. Admittedly, some "gotcha's" may have to wait in order to have any benefit. I'm just saying that type of thing really does not come up that often. More often it's some details about a witness or some discoverable factual point withheld that might help further the negotiations if disclosed.

Mediators are frequently asked to hold information in confidence, a request that any good mediator should honor without question. But from what I have seen, the benefits of settlement to the parties usually outweigh the slight risk one might tip his or her hand. Admittedly, a mediator's goal is settlement, not victory at trial, so maybe I've got a different perspective while wearing a mediator hat. But I also believe that settlement is the goal of most parties, especially if they take the time and trouble to do a mediation.

In keeping with the priority of many parties who mediate, attorneys who represent those mediating parties should take advantage of the mediation process to the extent possible and make every effort to obtain the best possible settlement offer or demand at the mediation, not six months after the mediation.

Making these efforts is not showing weakness and it does not mean that an attorney is selling out his or her client. Once the party has obtained the best settlement offer or demand at the mediation, the party can still choose to not settle if they wish.

You would be surprised too how many times a party thinks they have a secret when in fact it is no secret in the other room at all. I've seen, as mediator, both sides ask to have details of the same information withheld from the other side.  

What happens in the mediation process can change how one looks at a case and what is actually perceived as a reasonable settlement. Attorneys who mediate should always consider the benefits of arming the mediator with plenty of "ammunition" for the mediator to be able to get the job done.

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