As is true of information in virtually every setting is also true in mediation – information is power. Some believe it is best not to share certain information and exploit this power during the mediation in the “hope” to use that information as a devastating surprise during trial. Experienced litigators know that approximately 98% of all civil cases filed in state and federal court never reach trial. They also know that it is more likely than not that competent opposing counsel will eventually discover or become aware of the “surprise” prior to any trial.
As such, discerning counsel will weigh very carefully not whether to disclose the surprise but when and how to exercise this negotiation power as part of the mediation strategy. Should the disclosure take place in the Mediation Summary, the Opening Statement, or during the course of a caucus? Unless counsel and the client can articulate a compelling reason not to disclose a surprise, a party is typically best served by the exercise of its power and disclosing the surprise at a strategic time during the mediation process.
Of course there can be exceptions and in case of doubt do not hesitate to discuss the issue candidly with the mediator either before or during the mediation. If the mediator is an experienced trial attorney, there can be no harm in soliciting the mediator’s insight. Anything relayed to the mediator in confidence must be held in confidence until permission is given to disclose the surprise to the opposing party. One of the critical roles of the mediator during the caucuses is, when requested, to offer fair and appropriate guidance; there is no requirement that anyone accept any requested guidance the client and attorney don’t ultimately agree with. Moreover, there is always the real possibility that what a party believes is a powerful surprise may be no surprise at all.
Absent a discussion of the surprise with the mediator, a party may never know if the surprise will be as compelling to the opposing party as believed.