Modern Mediation: The Grand Reveal

Ordinarily, by the time parties show up for a mediation, they have already spent months or years developing and staking out their respective positions. There will have been proverbial chest pounding and other bombastic exchanges. Trust between the parties that might have existed before the dispute has completely eroded. Now, the parties hate not only their opponent but also their opponent’s lawyer. These conditions are not always ideal for settlement.

Mediation helps the parties cut through some of that noise. It allows the parties to test their legal theories with the mediator and decide which litigation strategy secrets they want to share with the other party. Information shared at mediation is subject to a fairly strict degree of confidentiality (e.g. ORS 36.220), so it can be a safe opportunity to disclose information that could otherwise be used for leverage or to cause harm outside of the dispute. This confidentiality protection is more robust than Evidence Rule 408, which only guards against some use of offers of compromise. 

However, some information should not be sprung on one’s opponent for the first time at the mediation session. For example, nothing terminates a mediation faster than revealing for the first time that your defendant client is on the brink of insolvency or bankruptcy. Likewise, showing up with a new legal theory or an increased damage calculation will make reaching an agreement nearly impossible. 

Sometimes, your preparation for the mediation can stir up these game-changing discoveries. When that happens, the key is to give your opponent some advanced notice that something has changed. Provide enough detail (and support) so your opponent can conduct some research and investigation. If you include it in your mediation statement and share it with your opponent, it will enjoy mediation confidentiality. But if you spring it on your opponent for the first time at the mediation session, it will just deepen the distrust and hurt your credibility. Your grand reveal at the mediation session is more likely to get you accused of bad faith than to improve your client’s mediation position.