Among the many excellent programs at the 17th Annual Northwest Dispute Resolution Conference we heard Christopher Soelling and Teresa Wakeen speak on "Fact or Fiction: How We Really Mediate."

Chris weighed-in on the question whether parties' pre-mediation submissions should be shared among the parties or just sent confidentially to the mediator. He has them shared, suggesting that this is a great and otherwise lost opportunity to persuade and educate the other side.

Other mediators suggest that they can learn useful information from confidential submissions that wouldn't be shared with the other side. And that writing one more adversarial document doesn't help the parties move toward resolution.

What do you think? What do you do? What makes sense to you?

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I agree with the practice of sharing mediation briefs with the other party--especially as I would like to see more cases go to mediation earlier, sometimes even before a case is filed. But I can also see the benefits of providing confidential information to the mediator. Topics such as perception of case strengths/weaknesses, willingness to explore specific settlement options, and the party's level of litigation aversion are all better treated in a confidential letter to the mediator IMHO. Of course, the same information can be conveyed in person at the mediation, but with more detailed or complex cases, it's nice to maximize the progress that can be made in session by getting the mediator up to speed in advance and hitting the ground running.

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