Sometimes, solicitors or participants hold back information from opposing counsel (and the mediator), thinking they hold back their ace until the last minute. Often, this backfires and involves more time and money being spent. Withholding important case information and evidence is seldom advisable. If you have proof that supports your case, it should be presented to the other participants and their advisors as soon as possible in an effort to reach a settlement and avoid incurring significant costs.
Sometimes mediation takes place at the outset of the case, before all parties have a chance to completely review or obtain all their evidence. It becomes necessary, at times, to withhold certain information. An example of this is witness statements that have not yet been obtained. For instance, if your client advises you they have a confidential witness willing to testify to a contractor’s use of substandard material, it may not be in your client’s best interest to reveal the informant’s name or details sufficient for the defendant to identify – and perhaps contact the witness direct. You will, however, want to reveal to the mediator, other participants and their advisors that the witness does exist. At mediation, regardless of what you reveal to your mediator, you always have control over exactly what information he or she presents to the opposite side.
Now let’s look at that “ace” from the other side of the fence. If, for example, a defendant contractor is accused of using substandard material in a property, which allegedly causes a serious allergic reaction to mould that results from moisture or water damage, any surveillance that the defendant has of the claimant living a normal, productive life, contrary to his or her claims, becomes a critical piece of evidence in assessing damages. Depending on the stage of the case, it might be a crucial timing call whether or if to reveal its existence. If the defendant plans on conducting more surveillance, revealing any information gained from prior surveillance may thwart their future efforts. The defendant will need to rely on their legal team for advice. With a knowledgeable and experienced mediator to liaise with the lawyers, and if settlement is close, this key piece of information may push the claimant to settle.
In deciding what to reveal and what not to reveal at mediation, it is always important to remember that the overriding goal of the day is to settle the claims. So if you are in any doubt, trust your mediator and reveal all relevant information. That way the mediator can help guide you, with your legal team’s advice, as to how much information might be revealed and at what stage, in order to give the best chances of achieving a settlement.
