TO SHARE OR NOT TO SHARE

Through the years, many attorneys have heard me say “If everyone could agree, we’d be out of a job.” The above statement does not mean that an agreement can never be reached but that it is likely that compromise will be required.  Since we know that in the real world reasonable people can initially disagree on matters, litigation exists and mediation plays a vital role in resolving disputes. But, in order for the other side to understand your position, it makes since that they would have to know the basis for your position.

As a mediator, I have experienced situations where it appears the first time a party realizes that things might not go 100% their way is during the opening statement at mediation. I have also seen attorneys lay out to the other side what the future might hold in either extensive/expensive/perhaps embarrassing discovery or the evidence that will be presented to the jury that will not portray the party in the favorable light that he/she may believe they bask in. Is it good advocacy to tell the other side that all is not rosy? Yes, I think so. Why? Because you’re trying to get the case settled at mediation for the benefit of your client. Is it zealous representation of your client to strive to make sure the other side not only knows your position but understands the evidence that supports it? Yes. I think so. Why? The same reason.

Decades ago, before mediation took off, there may have been a tendency to “hold something back for trial” should the case not settle the old fashion way (i.e. lawyers negotiating with lawyers.) The thought being that the interpretation of a piece of testimony or the pointing out of a key photograph (that was produced but maybe not fully understood by the other side) would be the key to winning the case at trial. The reality today, however, is that very few cases are going to trial. Thus, is there really a reason to hold something back anymore - especially if it will never be used because there won’t be a trial? The modern day approach would be to present all of the points in your favor at mediation in order to better your settlement. The great argument one has regarding a piece of evidence does no good if it is never told to the other side - and sometimes it may not be fully grasped or understood unless some assistance is provided.

So, when preparing for your next mediation, give serious thought to providing a full roadmap to the other side of the basis for your position as well as your evaluation of the evidence as to their position. This will insure that they understand your position and could result in a re-evaluation of their own position. Who knows, it might help turn the opening quote into a reality.