Mediation is a strategic process that requires careful planning and decision-making. One of the most critical decisions in mediation is whether, how, and when to share your strongest piece of evidence or caselaw—your "smoking gun." While revealing it at the right time can strengthen your position, premature disclosure may diminish its impact. Here’s how to evaluate your options.
1. Consider the Purpose of Your Smoking Gun
Before deciding to reveal your strongest evidence or caselaw, consider what you hope to achieve. Ask yourself:
Is it likely to encourage the other side to settle?
Will it lead to a more favorable offer?
Could it backfire or give the opposition time to prepare counterarguments?
Does the other side already know it?
Understanding its strategic value will help you determine if and when to deploy it during mediation.
2. Assess the Strength of Your Case Without It
Evaluate your case on its own merits without the smoking gun. If your argument is already strong, you may not need to disclose your best evidence or most on-point caselaw early. Keeping it as a final leverage point may maximize its impact.
3. Timing: When to Reveal It
Timing is everything. Consider these strategic options:
Early Disclosure: If your smoking gun is overwhelming and likely to end the dispute quickly, an early reveal may encourage an expedited settlement.
Gradual Unveiling: Present related evidence or caselaw first, leading up to your strongest piece at a pivotal moment when it will have the most impact.
Hold Until Necessary: If negotiations are progressing favorably without it, keep it in reserve as a final play if needed.
4. Weigh the Risks of Disclosure
Revealing key evidence too soon may allow the opposing party to develop rebuttals, shift tactics, or weaken its perceived impact. Consider:
How might the opposing side react?
Is there a risk of them seeking additional discovery or litigation extensions?
Could withholding it encourage a more reasonable settlement?
5. Deciding Whether, When, and How to Share It with the Mediator
The mediator can be a valuable tool in strategizing the use of your smoking gun. Consider:
Whether to Share It with the Mediator: If you are uncertain about revealing it to the opposing side, discussing it privately with the mediator can help gauge its potential impact and refine your strategy.
When to Share It with the Mediator: Bringing it up early in private caucuses can allow the mediator to use it as leverage in negotiations. However, if the mediation is progressing well without it, you may hold back and only share it if needed. Of course, you can only share it if your trust your mediator.
How to Share It with the Mediator: Provide full context so the mediator understands its weight and how best to present it to the other side if necessary.
Make Sure the Mediator Understands: Make sure there is no misunderstanding by the mediator as to whether or when he is able to share the smoking gun with the other side.
6. Using the Mediator If You Decide to Share It with the Other Side
If you choose to reveal your smoking gun to the opposing party, the mediator can help control the impact:
Determining whether it will be helpful: First, the mediator may explore whether the other side already knows about the smoking gun. If so, anxiety is averted. But, appreciate that the other side may not want you to know that they know. You see the challenges faced by mediators!
Framing the Disclosure: The mediator can introduce the evidence or case law in a way that encourages settlement rather than causing a defensive reaction.
Testing Reactions: Before direct disclosure, the mediator can probe the other side’s openness to new information and help assess their likely response.
Facilitating Negotiations: The mediator can use the smoking gun as a powerful negotiating tool, emphasizing its significance while still maintaining flexibility in discussions.
7. Alternative Ways to Leverage It
If full disclosure feels too risky, consider leveraging your smoking gun in a subtler way:
Alluding to Its Existence: Hinting that you have strong evidence or a case right on point may influence negotiations without showing your full hand.
Providing a Partial Reveal: Sharing part of the evidence can demonstrate your strength while maintaining some mystery.
Using It as a Last Resort: If negotiations stall, revealing the smoking gun late can be a game-changer.
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