Ed Ahrens, Jr., Esq. writes monthly thought provoking Editorials on mediation. These views are Ed's and do not necessarily reflect those of Florida Mediation Group.

In a recent mediation, involving multiple defendants and a roomful of attorneys, adjusters and parties, I had returned from my caucus with plaintiff and had explained his position and demands. 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.

His reply? "Everything."

Rule 10.080 of the Standards of Professional Conduct for mediators does indeed provides that "a mediator shall keep confidential from the other parties any information obtained in individual caucuses unless the party to the caucus permits disclosure."

Pretty clear, huh? 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. Yes, offers and demands in dollars alone can be relayed back and forth, in which case we have, for all intents and purposes, a settlement negotiation with the mediator serving as a mere money messenger--rarely workable and not a healthy environment for a meaningful, supervised settlement negotiation.

Mediation is, after all, consensual. The Court may order parties to mediation; it does not order them to settle. 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. Information is power; in mediation that power can move the settlement process toward a productive end. A successful mediation involves carefully planned, step-by-step negotiation, utilizing the professional skills of the attorneys and the mediator.

Mediators are accustomed to the occasional posturing, even show-boating, of some lawyers. No problem. If it impresses the other side and does the job, go for it. Are you there only to meet and appraise the opposing side? Okay. To engage solely in a little informal discovery? Okay, too--I guess.

However, if there is, from the beginning, no real intention to share any information with the other side, just know that it puts the mediator in handcuffs and suggests that there is no intention to settle under any circumstances. In such case, the party and counsel should inform the mediator immediately, before everyone's valuable time is lost and the cost of mediation run up.

Incidentally, the well-attended mediation when I was "handcuffed"? It impassed, after a few pointless back-and-forths.

Happy mediating, folks, but, if success is your aim...do it with verve.

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