Discovery in Mediation

March 18, 2024

In mediation, gathering information is crucial for parties to understand the core issues driving the dispute. Mediation offers a streamlined process of disclosure in a confidential setting, bypassing many of the complexities of litigation. While litigation often involves extensive and burdensome discovery processes, mediation allows parties to focus only on essential information necessary to reach a resolution.

In negotiation and mediation, information serves not only for case evaluation but also to address underlying causes of disputes, understand party dynamics, and evaluate the feasibility of potential agreements. Mediation involves developing a much wider range of categories of information compared to litigation. Counsel should keep in mind that they are seeking to develop this wider assortment of information, and that mediation-based disclosure serves a distinct purpose from litigation discovery.

Despite considering a broader range of information, discovery in mediation typically involves less time and cost compared to litigation. The content and forms of disclosures in mediation can be abbreviated, reducing the time and expense typically associated with litigation discovery. Parties and their counsel can agree on issues without the need for exhaustive collection of evidence in admissible form. Instead of formal discovery, the mediator may also ask that parties simply list the core information needed in a letter and that they produce the core documents and information needed for negotiation.

The mediator plays a crucial role in guiding the discovery process during mediation. For instance, if counsel is hesitant to make certain disclosures because it may give the other party and counsel insight into case strategy that might influence future testimony if the case does not settle, the mediator may facilitate discussions on the necessity of that information and help assess the risks and benefits of disclosure. Mediators can also help speed the discovery process by assisting in setting discovery schedules and encouraging effective information sharing to facilitate negotiation.

Counsel also play an important role in the information gathering and disclosure process in mediation. To reduce informational asymmetry and enhance mutual understanding, counsel can prepare and exchange key documents, damages spreadsheets, key facts and emails, and mirrored hard drives with searchable data.

Discovery in mediation benefits from being conducted in a confidential setting, which fosters open communication and promotes settlement. While confidentiality increases parties’ willingness to disclose information, counsel and parties must be aware that once information has been disclosed in mediation, if the mediation terminates without resolution, a party can serve a discovery demand or ask questions in a deposition which are designed to elicit this information.  

Mediation offers unique opportunities for information sharing. Disclosures in mediation are made in a streamlined and confidential environment, facilitating effective negotiation and resolution of disputes. Counsel and parties, however, should remember that information disclosed in mediation may also be discoverable in later litigation if the mediation fails. 

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