Like many lawyers who started our careers in the ’90s, I was taught to value secrecy. I was always told to give away as little information as possible in any dispute.
The reasoning was simple. All cases have weaknesses, but we should make it as difficult as possible for our opponents to find out about them. If the case could be settled without anyone ever finding out about those flaws, results would be better. I was taught that we were not allowed to break the rules of discovery, but we should always find a way around those rules if we could.
To be fair, it’s not only lawyers who think this way. Many clients have asked me how to go about withholding key information until the start of a trial so we could ambush our opponents with it. I even had one client who instructed me to proceed on the basis that the document he was holding in his hands at that exact moment did not exist. This was, of course, the end of our lawyer-client relationship. Unfortunately, that client was not the only person who has ever asked me to ignore or conceal a document. He, was, however, the only person who has ever tried to remove a document from my possession by taking away a paper copy of an email when the original was still in my inbox.
There are many reasons why a secretive approach to disputes is not a good idea, including the additional costs that get wasted while lawyers fight over whether a document has to be disclosed, to the specific penalties for such behaviour set out in the Civil Procedure Act 2010. In this article, I want to focus on how such tactics are harmful to the mediation process.
It is usually pretty obvious when a party is trying to avoid disclosing documents, or where their approach is to give as little information as possible. If a party feels that their opponent is trying to mislead them, this creates anxiety and other negative emotions.
Psychologists believe that those negative emotions can cause a person to engage in adversarial behaviour and that when one party takes an adversarial approach, it is more likely that that the other party will also become more adversarial.
The end result can be a feedback loop where each party’s approach becomes more adversarial until one of them walks out.
I know it goes against what a lot of lawyers have been taught, and it may go against our clients’ expectations, but research, and experience, suggest that a free and frank exchange of information and documents is actually the best way to prepare for a mediation.