It is helpful to share what is important to you with your mediator. When the mediator is aware of what is driving your decision making, they can help you negotiate.
I have a vested interest in the answer. As a mediator, I always find it helpful to know from the outset what is key to securing a settlement. However, I recognise that often parties are uncomfortable sharing all information and often want to hold things back.
Previously, as a solicitor representing a client at mediation, I would also support a client’s decision not to have the mediator in the room when certain details were being discussed. Sometimes this was to provide a client with space to share more information with me than they had disclosed already, and other times it was to check how a client was feeling about the process and any new information. It could also be a time to explore with a client how far they would go to settle their case.
All these discussions could take place in front of the mediator. The mediator is bound by confidentiality. The details discussed, the tone, the overall mood, the limits of settlement cannot be shared with the other party without permission. They are protected.
Why therefore include the mediator? A dispute is at mediation because the parties, or their solicitors, have not been able to resolve it. Mediation introduces a new dynamic. A third party entrusted by all sides to facilitate the negotiation. When the mediator is part of each side’s discussions, their unique role enables them to guide and coach a way forward. If there are aspects of your case that are not shared with the mediator, it is harder for the mediator to help frame those negotiations to support the parties to find a solution.
One easy example would be a dispute arising between two companies, A and B, over unpaid invoices. Company A wants to be paid in full without compromise. Company B says Company A failed to deliver their services to the right standard and no payment is deserved. Company A discloses to the mediator that they have financial difficulties and need money quickly. Company B shares with the mediator that it knows most of the invoices are due, but it has cash flow difficulties and cannot therefore pay them. Without breaching any confidentiality, the mediator may help coach the parties to agree a payment plan on terms that meet Company A’s financial deadlines and that keeps Company B in business. If Company B went out of business due to Company A applying for it to be wound up, the likelihood would be Company A would not recover any money and both companies would go out of business.
Mediations tend to involve layers of complexity that impact decision making. By sharing information with the mediator, the mediator has the best opportunity to facilitate in a way that supports the parties to reach a settlement. It is also worthwhile remembering that from a very practical point of view, the mediator will not be with you all the time. There are therefore opportunities to discuss your position and strategy without the mediator being present.