Prior to mediation, share information prior to the mediation that will allow the other side to fully assess their risks in litigation and realistically evaluate the case for settlement. Request information and other documents that will help you and your client more fully evaluate the case prior to mediation.

Preparing for mediation is different from litigation preparation. Guard against a knee-jerk reaction to refuse to share information simply because the other side wants it. Success in mediation requires the attorneys to differentiate between litigation strategy (convincing a court that you're right) and mediation strategy (achieving settlement). Mediation strategy should include sharing information that might help persuade the other side to more accurately and objectively evaluate the case and the associated risks. The purpose of mediation is to help the opposing party and counsel broaden their perspective of the dispute. Provide information that will encourage the other party to see the case as you and your client see it.

By the same token, identify information that can help inform and persuade your client and prepare them to negotiate. Request materials from opposing counsel prior to the mediation. If certain information or documents are central to the other side's valuation of the case, they should be central to yours as well. In your mediation preparation, determine whether there is information from the other side that would allow you and your client to be in a better position to settle the case. Analyze whether there are any weaknesses in your own case that you've been unable to get your client to understand or appreciate. Use the help of the mediator to facilitate the information exchange.  

In several of my recent mediations, the exchange of specific information prior to the mediation was central to the ability of the parties to achieve resolution. One recent case involving gender discrimination and retaliation claims also involved  a heart-breaking tragedy. One of the individually-named defendants committed suicide the day after the lawsuit was reported in the local newspaper. Plaintiff's counsel reasonably assumed that the suicide note the defendant had written to his co-defendant would impact (increase) the value of the case and wanted the document. Defense counsel, reasonably concerned about the privacy of the deceased defendant and his family, resisted sharing the document. I facilitated the premediation negotiation that led to the sharing of a redacted version of the suicide note. While the note did not state what the plaintiff and her attorney imagined (a mea culpa from the defendant), the defendant's note revealed an overwhelming desire to avoid the publicity of litigation. In this case, the suicide note allowed the plaintiff to see the anguish of the defendant as well as his potential liability in litigation. Seeing the actual language of the defendant's parting message before his death was essential for the plaintiff to recognize the possibility that a jury could be more compassionate towards him in litigation.  

In a sexual harassment case brought by a female warehouse worker, the plaintiff alleged egregious acts of sexual harassment by multiple co-workers and supervisors. Her allegations were supported by declarations of both former and current employees. Additionally she had corroborated evidence that management had witnessed and tolerated the hostile work environment and ignored or otherwise mishandled her complaints. Accordingly, her attorneys placed a high value on her case. The plaintiff confirmed in her deposition that she had worked as an exotic dancer in her former career. She testified in her deposition that she kept her prior work as a stripper completely separate from the warehouse workplace. The employer's lawyers discovered during their investigation prior to the mediation that the plaintiff had not only continued to perform exotic dance work while she worked at the warehouse but that she performed a for-hire strip dance for her co-workers at a birthday party. The defense counsel discovered a photograph of plaintiff whose bare breasts were being fondled by two co-workers. While still an employee, Plaintiff sent the photograph to one of the alleged harassers along with another co-worker who she was dating. Along with multiple co-worker declarations that supported the assertion that the plaintiff actively and willingly participated in the sexualized environment, the documents/information in possession of defense counsel had a huge impact on the case value, plaintiff's credibility and her risks at trial. Rather than withhold the information and ambush the plaintiff later in litigation, defense counsel decided to share the information with plaintiff counsel prior to and during the mediation. This decision to disclose rather than hide essential case information benefited both parties by allowing a clearer view of the case and avoiding a costly, bruising battle in litigation.  
In another case, the plaintiff complained about sexual harassment by her assistant manager to the regional human resources manager. She was disciplined by the store manager soon thereafter and ultimately terminated. The strength of her retaliation claim hinged largely on whether there was any evidence of performance concerns or protected activity prior to her protected activity. While there were no formal disciplinary write-ups in her personnel file, the defense asserted that the manager's daily logs contained evidence of the plaintiff's performance problems.  Yet, the defense counsel had refused in to turn over the logs.  Plaintiff's counsel agreed to mediate only if the logs were made available prior to the mediation.  I facilitated a mutual exchange of information between the parties prior to the mediation. The defense counsel agreed to share the manager's logs in exchange for the plaintiff's tax returns and other evidence of economic loss and mitigation. The documents were exchanged as part of the mediation memos and allowed both sides to more fully assess their risk and exposure. The manager's logs revealed a handful of documented performance discussions with the plaintiff by managers other than the alleged harasser. Without the manager's logs, the plaintiff would not have been able to fully appreciate the potential risks of her retaliation claim. Similarly, without the financial documents, the defendant would not have been able to assess their exposure to economic damages. 

In all three examples, the attorneys could have continued to refuse to share the information in discovery. In that process they would have increased litigation costs, perhaps forced the issue to be decided by the judge and remained further from a clear assessment of their respective cases. Instead, they used the mediation process to share information, more objectively assess the strengths and weaknesses of their cases and provide more fully-informed advice to help their clients reach settlement. A full assessment of the case as part of the mediation process also results in a more satisfactory settlement by eliminating any lingering doubt about what discovery could have uncovered.