The Value of Being Forthright in Mediation

A mediator is merely a facilitator of communication between parties. Because a mediator is bound to maintain confidentiality of all mediation communications, even those occurring before, or after the mediation, this provides for a special opportunity for both parties to communicate openly. All communications are protected and preserved and “privilege” prohibits the admission into evidence any and all mediation communications in any further proceeding (litigation or arbitration). This is extremely valuable, because nothing shared during mediation can later be used against you or by you in any future litigation (e.g. during trial).

Mediation is like a special little meeting where both sides can share openly their respectful interests and concerns in an attempt to find mutual satisfaction in an agreement that is better than each parties’ “best alternative.” A best alternative is a party’s “walk-away alternative”, meaning, if the party doesn’t successfully come to an agreement during mediation, what will be most likely outcome for the party, not the outcome the party most desires, but the outcome most likely to occur. The mediated agreement must be better for both parties than for either party to walk away from the agreement. Otherwise, the mediation is likely to be fruitless and both parties will opt for their walk-away alternative.

Thus, in mediation, seek to be as forthright and sincere when communicating your interests, and be creative in brainstorming solutions that will provide mutual satisfaction but also provide you with an agreement that is better than your anticipated “best alternative.”