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How Much of Your Case do You Disclose at Mediation?

by Edward J. Kroger, MD, JD on June 30th, 2010

How much of your facts, tactics and strategy do you reveal at mediation?  I was taught by my mentors two completely different approaches.  One of my teachers would spend up to two hours in the opening session discussing the litigation process, reviewing the medical records and the more important testimony, discussing the law and its application to the facts, presenting some of our trial demonstrative aids, and reviewing the charge and how it was likely to be filled out by a jury.   His goal was to overwhelm the opponent with his grasp of the facts and law, and his high level of preparedness.  Another mentor simply thanked everyone for being at mediation and indicated he would keep an open mind.  He believed he would gain an edge by discovering information from the opponent without revealing any of his own knowledge.  The best approach, however, is to custom tailor the information you disclose for each mediation.

First, consider the following:

  1. What is the timing of the mediation?  Is this an early mediation, such that you may have a much better understanding of the case than opposing counsel, and any disclosure will simply educate the other side and leave ample time for your opponent to respond to anything you disclose?   Or has discovery been essentially completed, and trial imminent, such that both sides have a full understanding of the facts already and there is little time to change strategy or the developed facts?
  2. Who is your audience?  Good attorneys will already know your position and be unimpressed with a recital of facts or the law.  Inexperienced attorneys, on the other hand, may be impressed by what you know.  Some plaintiffs really want to understand your position, while others are so firm in their mindset that disclosing information to them is pointless.   If you are interested only in educating the mediator, this can be done in a confidential memo or private meeting.  Your client should fully understand the facts and law prior to the mediation.
  3. What is the likelihood of settlement?  If your client has no interest in settling, or the parties are so far apart in their positions that a mediated resolution seems unlikely, then disclosing information to the opposing side serves little or no purpose.  If your client needs the case to be settled, or it appears that mediation will likely succeed, then it will likely be a mistake if you have reached a settlement without disclosing something important to the other side that would have weakened their position.

Prepare for mediation by considering your case carefully and deciding on the key facts or law which most strengthen your position.  Think of this process as sorting a hand that you have been dealt in a card game.  Carefully consider your strongest cards, and whether and when you should play them at mediation.  It may make sense to disclose one or more of your strongpoints in the opening session, or it may be prudent to withhold information until the separate breakout sessions.

A final note on timing.  In most mediations, information is disclosed in the opening session, or early in the breakout session dialogues (perhaps the first three offers or demands).  Waiting much later in the mediation will be less effective as the parties have already fine-tuned their positions and become entrenched in their positions.

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