In almost all cases for which mediation is planned, the principal parties provide a mediator with a mediation submission setting forth the nature of the case and including important pleadings, reports, photographs, or other relevant materials. In some Wisconsin counties, it is routine to share mediation submissions with the opposing parties. In other parts of the state, the submissions usually are given only to the mediator, without any sharing with the other side. Which is the best procedure? This article discusses reasons for and against sharing and suggests a middle ground.

Sharing the Mediation Submission with the Opponent

Advantages. A shared submission can save valuable mediation time by revealing factual misunderstandings that can be easily resolved before the mediation begins. For example, if one side includes in its shared submission a list of claimed medical or wage-loss dollar amounts, and the other side has been working with a different figure, the exact amount being claimed can be clarified before the mediation takes place.

Further, sharing a submission allows the parties to confirm for both the mediator and other counsel background features of any proposed settlement. This way, mediation time can be devoted to the central issue, usually money. For example, including in a shared mediation submission a reminder to the other side that confidentiality will be requested as part of any settlement, or that a municipal board must ultimately approve any settlement agreement, will avoid the possibility that announcing such requirements right at the end of the mediation will cause irritation and even upset the whole deal. (See “Timing is Everything: Introducing Confidentiality Agreements at Mediation” in the June 2014 Wisconsin Lawyer.)

In still other cases, if a shared submission discusses the status of any pre-mediation negotiations, and the other side honestly has a different recollection as to the parties’ position going into a mediation, such ambiguity can be dealt with in advance so as to avoid embarrassment or irritation when the mediation is underway.

Disadvantages. There are, of course, disadvantages of sharing a mediation submission. In a case in which counsel thinks settlement short of trial is very unlikely, counsel might be reluctant to discuss his or her client’s position in a way that serves only to help the opponent prepare for trial. For example, a plaintiff who has evidence strongly impeaching a defendant’s deposition testimony may reasonably be reluctant to disclose that evidence in a shared mediation submission if settlement is very unlikely to occur even if that evidence is disclosed.

Keeping the Mediation Submission Confidential

Advantages. If a mediation submission is given only to the mediator, counsel will be free to candidly discuss the case without fear of needlessly antagonizing the other side or unwisely highlighting weaknesses in counsel’s own case.

For example, although it might be important for the mediator to know that an attorney submitting a mediation statement believes the opposing party makes a very poor witness, or thinks opposing counsel or the claims adjuster is inexperienced, including such statements in a shared mediation submission might needlessly anger the opposition.

Likewise, conceding in a contested liability case that the odds probably favor the opposition might increase counsel’s credibility with the mediator, but actually sharing such an observation with the opposition might be undesirable.

Disadvantages. Keeping a mediation submission confidential might, however, lead to a missed settlement opportunity. If the opponent genuinely lacks an understanding of the case’s trial or settlement value, but is open to reason, a shared submission that sets forth the things the party must know might enable that party to come to the mediation with a far more realistic starting settlement position.

Taking the Middle Ground: Use a Combination Approach

Counsel should consider taking a combination approach to mediation submissions. Under this approach, the mediation submission as a whole is sent to both the mediator and the opponent, but the mediator’s copy includes a special, confidential portion “for the mediator’s eyes only.”

The portion of the submission shared with the opponent can include the typical description of the case from a factual and legal perspective, along with a recitation of the submitting party’s position. This shared portion will, it is hoped, confirm areas of common ground and identify areas of avoidable misunderstanding, all without any unintentional disclosure of things best kept from the opponent.

Then, a special section can be added to provide guidance to the mediator as to barriers to and opportunities for settlement, candid evaluation of the parties and counsel, and so on. In short, this confidential section gives guidance about things that counsel wants the mediator to know in advance, but that counsel does not want the other side to know, at least for the time being. The fact that part of the submission is confidential will itself be no secret. The shared portion of the submission – and likely the cover letter to the mediator and opposing counsel – should state that the mediator’s copy of the submission will have the special for-the-mediator’s-eyes-only section.

Conclusion

There are advantages and disadvantages to sharing a mediation submission with the opposition, and to giving a mediation submission on a confidential basis only to the mediator. Given this reality, there is no reason for counsel to not adopt a combination approach, with both shared and confidential portions.