How Much Should I Share at Mediation?
Credit: @priscilladupreez
People considering mediation often fear they will give away valuable information, or show evidence as a negotiation tool that later comes back to harm them.
It is important to know that mediation is a very protected activity. It’s confidentiality is somewhat broad as well. The state of California, for example, generally prevents the mediator from being called as a witness to any statement or conduct of a party in relation to the mediation. Documents shared that are prepared in anticipation of negotiations or mediation are excluded from evidence. In addition, and most importantly, statements, and even admissions made during mediation are inadmissible in court.
The law goes out of its way to protect mediation because courts are usually very backlogged, and would rather people settle disputes in mediation. (Not to mention, nearly 95% of cases ultimately settle before trial!) Therefore, lawmakers made an effort to protect the mediation process in order to encourage participation.
Most importantly, if the parties cannot be more candid with each other, how are they supposed to negotiate long enough to come to any sort of agreement? If they don’t, they will be stuck on opposite ends of the universe offer-wise, having made zero progress.
Many parties and attorneys fear the other side will use mediation as a way to score new information about the kind of “case” you’re trying to establish, your planned trial strategy, or theory of a case, as well as come up with new discovery requests based on things they see/hear. While this fear is understandable on some level, you must also take into account the ways revealing information at mediation can help you.
You can say what the other party did/failed to do all day, but at some point the other side and the court will be asking you to prove it. You know the saying, “Put your money where your mouth is.” This is putting your evidence where your demands/defenses are. Even when your claims have merit, the truth is that it may not really matter. Only what you can reasonably prove matters. Sometimes you know the truth, but cannot show it because the evidence has been lost, destroyed, or just doesn’t exist in a way that can be shown. This happens all the time, and can place you in a precarious position because your case will be weak. However, it is much better to discover this in mediation, before the expensive and difficult trial preparation begins. It doesn’t mean that you don’t have a case at all. In fact, most parties who understand the costs of litigation may even be willing to offer a small settlement to save on future anticipated costs of litigation.
In addition, there are some parties that will not settle anything until they see evidence supporting a claim, namely insurance companies. Litigation involving insurance companies is different from other civil litigation. In-house insurance attorneys are running a pretty strict numbers game. They are often weighing the company’s projected cost of litigating against what they have valued a case to be worth. The most important thing that determines how they value your case is through access to documentation of the damages you’re claiming. If they only have a third of the records showing the extent of whatever the claim is for, it could cause the case to be undervalued. But, if they begin to see a full and fair representation of liability, the value tends to go up, and therefore the offer goes up too. They are more likely to settle than not. However, I have seen insurance companies allow a case to go to trial in situations where they believe the case is worth less than the last demand, even when the cost to do so and the risk didn’t make sense from the outside. So, settlements aren’t a given, but on the other hand, neither are judgments for either party. Going to trial poses risks for everyone most of the time!
Whatever you discover at mediation is pretty well protected. Sure, the other party may become aware of a piece of evidence they didn’t know existed and then ask for it. However, you should always assume the other party knows more than you think they do, or that their attorney will know to ask for such information during discovery. Never underestimating your opponent is important in life and litigation. Not to mention, it could make them realize that they have been underestimating you!
An air of confidence in presenting evidence could make the other side aware that their position is not as strong as they previously thought, or that you’re presenting a different case than you thought they would; one that could make them take additional things into consideration. This could help the parties move towards settlement much faster. As previously stated, if everyone maintains their highest guard in mediation, the purpose will be undermined. Mediation is often a reality check for all parties about some aspects of their situation––most have failed to see some of the problems with their case, and how these problems could become a hurdle with them in a court setting. Once information is shared with the other side, you also get to see their response to it in real time. This may reveal ways in which you should adjust strategy moving forward if necessary.
Overall, there are many benefits in sharing information during mediation. Knowing the rules regarding what is and isn’t protected at mediation and trying to get a good understanding of where you are strong and where you might be less so are key in helping you make a strategy for mediation. Most importantly, lest we forget the function of mediation in all of this: The whole point of mediation is to try to set aside certain differences, or at least agree to disagree about them, and then share ideas about how these issues can be resolved without further intervention. If you feel like you’re only going into mediation to “check off a box” in that you attempted settlement, I urge you to reconsider your approach to mediation. It might not go very far, but at a minimum could give you some important information, and hopefully help to avoid having to go further with litigation.