Confidential Side Letters to the Mediator

June 5, 2023

Before the mediation, at the invitation or suggestion of the mediator, a party may elect to send the mediator a confidential side-letter in addition to the pre-mediation statement exchanged with the other party. The side-letter for the mediator’s eyes only is an opportunity to communicate additional private or sensitive information, interests, concerns, or requests to the mediator without disclosing it to other participants. These letters typically inform the mediator about the party’s settlement preferences, financial concerns, personal information, or information about the other party that might impact the mediation but which for one reason or another the party does not want to share with the other party at the time of mediation. Confidential side letters to the mediator are private and are not shared with any other participants of the mediation, unless permission is explicitly granted to do so. The mediator is prohibited from sharing any aspect of the confidential letter with any other participant of the mediation as they are bound by the rules of confidentiality, and a party is not required to submit a confidential letter even if other participants do.

The purposes of the side-letter to the mediator are to provide the mediator with a deeper awareness of a party’s position and concerns, to allow the mediator to better understand the potential hurdles or proposed solutions or settlement offers, and to allow the mediator to understand the parameters of the negotiation and potential alternative solutions or paths to settlement than the opening positions set forth in the pre-mediation statements.

Among other things, the confidential side letter to the mediator may allow a party to:

• Disclose sensitive information or concerns privately so that the submitting party’s position is more transparent for the mediator.
• Allow the mediator to understand the party’s underlying preferences and financial and emotional interests which the party is hesitant to express to the other side.
• Suggest alternative negotiation strategies or settlement proposals that the party may not want to share with the other participants at the outset of the mediation but that may be relevant later in concluding a deal.
• Allow the party to make its position clear to the mediator although the information cannot or should not be shared with the other party because of a disparity of information or an imbalance in leverage or bargaining power between the participants.
• Providing context related to a participants cultural or religious background, allowing the mediator to better assess the dispute and satisfy the most pertinent interests and concerns.
• Allow the party to share sensitive information with the mediator that might alienate or even infuriate the other party and derail the mediation at the outset in order to preserve a working relationship with the other party during the mediation and thereafter should the mediation prove to be successful.

There are potential downsides to the side-letter to the mediator:

• A confidential letter to only the mediator reduces transparency between the parties themselves and could hinder trust and open communication.
• Not sharing key concerns with the other side doesn’t allow the other party to fully hear your position and interests and the ability to find a mutually beneficial resolution.

Different mediators have different preferences for confidential letters, so it is advisable to consult with the mediator directly to determine the mediator’s preferences for the format and nature of the statement. In any event, the side letter itself should make clear that it is confidential and for the mediator’s eyes only and is not to be shared with the other party.

As the mediator is a neutral third party between the participants, sharing sensitive and private concerns and interests with the mediator before the mediation begins can highlight the deeper dynamics of the participants and the dispute, helping the mediator in finding a beneficial resolution for both parties. It may also be a useful tool to further advocate for your position in mediation, and ultimately to avoid litigation.

To read how Castaybert PLLC can assist you with mediation, click here.