Information to Share in a Mediation
For disputes, common questions that often arise are:
- What is the right information to share in a mediation; and
- How much should I share with the other side?
If a mediation is to be successful, it requires some transparency on the part of all parties. The difficulty is knowing how much information to share in a mediation, without compromising your own position. This article will briefly set out some matters to consider.
In our previous article, What you need to know about confidentiality in mediation, we considered how the law protects information shared in confidence in mediation. In a mediation, you do not need to be concerned that what you say will later be used against you in court if the mediation is unsuccessful. However, you still need to think about what information to share in a mediation from a strategic point of view.
How does a mediation work?
A mediation should allow the parties to explore their options. This does require you to tell the other party what your general objective is, even if they do not need to know the specifics. Once the other parties' objectives are known, you can explore the options for resolving the dispute. A mediation will not be successful if you do not know what is important to the other party, and they do not know what is important to you.
What are the benefits if I share information in a mediation?
By exploring the options, the parties should be able to expand the realm of possible outcomes. It is easy to think of negotiations as a zero-sum game, where one party's gain is another's loss. Often, however, parties will have different interests that allow for the creation of mutual value that they might not otherwise have recognised. You cannot find this common ground if you have not shared your objectives, at least in broad terms.
What information should you not share in a mediation?
If you can avoid it, you should not share information in a mediation if it will damage your bargaining position. For example, if your success at mediation depends on a threat being credible (such as the threat that you will take legal action), you should not share any information that would call the credibility of that threat into question.
How to negotiate in a mediation
Negotiations involve making trade-offs. There may be some things that you can give up at a relatively minimal cost to you. However, you may not want the other side knowing that the trade-off is cheap for you. You still want to extract the maximum value for the trade-off. There is a balancing act here. If you say something is not important to you, the other party will not be willing to give you much in return for it. On the other hand, if you do not let the other party know that you are willing to engage in the trade, you will never find a mutually beneficial outcome.
How do you make these trade-offs?
One helpful way of framing a trade is to discuss the value the other side is obtaining, rather than focusing on the cost to you. This allows you to present the trade as fair and beneficial to the other side.
There are some things that you might not want to share, but that you will have to. This is especially true in a mediation that is part of a court proceeding. You may be in possession of evidence that is not favourable to you, but which will need to be disclosed during the proceedings anyway. In this situation, you should be ready to conduct a mediation on the basis that all the information that will be available at a trial is known to the parties.
Of course, what you should and should not share will be specific to your situation. It is important that you have thought through what you are willing to share with the other side in the mediation. If you are prepared and have a strategy, you will increase the chances of obtaining your objectives in the mediation and obtaining a favourable outcome.
How can Sharrock Pitman Legal assist?
As Nationally Accredited Mediators, Sharrock Pitman Legal offer dispute resolution and mediation services in Melbourne and Australia wide. If you have any further queries about the information to share in a mediation, or any other issues, feel free to contact Simon Matters on 1300 205 506 or alternatively fill in the form below. For further information, visit DisputeOver.
For more in depth information on the benefits of mediation, refer to the Benefits of Mediation.
For more information about what happens at mediation, refer to Preparing for your Mediation Session.
The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.
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For further information contact
Simon is a Senior Associate of Sharrock Pitman Legal.
He is an Accredited Commercial Litigation Specialist (accredited by the Law Institute of Victoria) and deals with Litigation, Mediation of Disputes, and Law for Charities & Not for Profits. For further information, contact Simon Matters on his direct line (03) 8561 3324.