Lead counsel for the defense then laid out their position, defenses and reasons why the demand was unreasonable. At that point, I reminded defense counsel, as I had plaintiff's counsel, that communications in caucus were confidential, and, glancing at my notes, asked lead counsel what, in the information he had given me, he and the others wished for me to keep confidential. I think so, and, in general, confidentiality is the engine that makes mediation run. But if confidentiality is the engine, then information is the transmission, and the discreet sharing of information puts the mediation vehicle into high gear. So, let's talk about the mediator's situation when he or she, in caucus, is not allowed to disclose any information given him.
Mediation is, after all, consensual.
The right to trial is preserved, and, if one or both of the parties wish to terminate mediation, even before it begins, it is their right to do so, no questions asked. If, however, the parties have an honest desire to take advantage of the one opportunity they have to amicably resolve their dispute and to avoid the expense, delay, stress and uncertainty of a trial, judgment and discretion should be used by counsel in instructing the mediator on what information may be shared with the other side. No one is more aware than the mediator that the mediation process involves strategy, and the mediator expects counsel to frame and time the sharing of information in a manner best calculated to achieve a beneficial result for his client. Mediators are accustomed to the occasional posturing, even show-boating, of some lawyers. If it impresses the other side and does the job, go for it.