Updated: Aug 22
Information has the power to influence and ultimately move people to action. This is precisely why we are bombarded with information day and night. Whether it be marketing messages, political speech, or even an email from a co-worker, they all are a call to action in one way or another.
Mediation, as a forum for dispute resolution, is no different. If the goal at mediation is to seek resolution of a matter on favorable or acceptable terms, then mediation cannot operate in a vacuum of non-information. Failing to disclose critical information at mediation takes away your opportunity to influence the case and move people to action so the matter may be resolved.
Settlement is a Rational Business Decision
The resolution of a case at mediation is often the result of a rational business decision. There are of course those instances where a party may resolve a case on a whim but those are usually rare instances and not necessarily lasting.
If you want to have a lasting resolution without buyer's remorse, the better practice is to ensure that both parties are making rational business decisions. A rational business decision is an informed decision in which a risk and cost/benefit analysis has been made. The only way an informed decision can be made is where a party has sufficient information to conduct a risk and cost/benefit analysis.
What to Disclose
In the context of resolving a legal case, what does the other side need to hear in order to make an informed business decision? It is actually pretty simple. The other side needs information that can impact its analysis as to the prospects of liability, the measure of damages, and the costs for proceeding to trial if a settlement is not reached.
To be clear, by the time the parties reach mediation, they should already have a view as to liability and the prospects of success at trial, the range for possible damages by way of a verdict, and what it will cost to get through trial and any possible appeals.
However, these views on liability, damages, and costs are unilateral and developed only from the limited perspective of that party. This is where assumptions, bias, overconfidence, and a lack of information can lay a trap and skew the analysis. For instance, do you really think the other side sees liability, damages, and costs, exactly the same way as you do? If not, then what information or assumptions are they relying upon for their analysis?
If both sides were to freely and candidly share their information as to liability, damages, and costs, it is sure to generate an interesting discussion. Such a discussion may expose blind spots, new ideas, and faulty assumptions. The key here is new information is gathered. You do not have to openly agree that you have a blind spot or made a faulty assumption, but you certainly now have the opportunity to act upon it and further assess your position.
In contrast, withholding information like playing poker, so that it can be launched as a surprise at trial is often a faulty strategy. Why is this? Because there is no trial by ambush. If you are going to use this incredible piece of evidence or witness testimony for liability or damages, rest assured you are going to have to disclose it prior to trial.
What to Do with the Information
If opposing information is candidly shared at mediation concerning liability, damages, and costs, new opportunities will open up during mediation. First, with this information the parties will now be in a better position to understand the actions of the other and why certain stances have been taken. This takes the parties out of the realm of distrust or just writing off the other side as being irrationale. The by-product of this understanding is to build rapport with the other side which is needed for resolution.
A second opportunity that develops during mediation with the exchange of information is for a party to question their own assessment as to liability, damages, and costs. New information shared by your opposing party may lead to a different concern as to liability, a recalculation of damages, or never considered additional costs.
Similarly, the free exchange of information may allow you to challenge the other party's assessment as to liability, damages, and costs. In this way, you may have discovered a blind spot in the other party's analysis that you could address at mediation that could completely alter their view of the case.
When both parties can freely and confidentially exchange information during mediation, not only is rapport and trust built, but it also naturally creates a collaborative environment. In this collaborative environment, the parties can non-judgmentally try to solve a problem. This is a marked difference from the litigious winner-take-all environment the parties have been operating in up to this point. This is the essence of having a meaningful mediation.
Miami Florida Mediator