As a Florida mediator specializing in first party property claims, personal injury cases, bankruptcy matters, and other commercial and financial disputes, I’ve observed countless negotiation strategies unfold—some brilliantly effective, others surprisingly counterproductive. Among the most nuanced decisions attorneys face during mediation is information management: what to reveal, what to withhold, and how offers communicate intentions beyond their dollar value.
INTRODUCTION: THE STRATEGY BEHIND INFORMATION MANAGEMENT
This article explores two critical aspects of strategic information management that can dramatically impact your next mediation outcome:
- The poker face dilemma: When strategic information withholding helps—and when it sabotages your case
- The hidden language of offers: How the structure, timing, and pattern of your offers communicate intentions far beyond their dollar value
I. THE POKER FACE DILEMMA: TO SHARE OR NOT TO SHARE?
Mediators function best with complete information. That’s the conventional wisdom, and in many cases, it’s correct. However, experienced attorneys understand that strategic information withholding can sometimes serve legitimate negotiation purposes.
A. When Withholding Information May Be Strategic
- Bottom Lines and Authority Limits Many attorneys instinctively protect their client’s bottom line or settlement authority from everyone in the room—including the mediator. This approach can prevent the mediator from inadvertently revealing this threshold through body language or suggestion, particularly when working with less experienced mediators. In high-stakes personal injury cases, property damage claims, or bankruptcy negotiations where the final numbers are closely contested, maintaining this information asymmetry can be advantageous. If the mediator doesn’t know your true walkaway point, they cannot unconsciously telegraph it to the opposing party.
- Undisclosed Alternatives Sometimes parties have alternatives to settlement that strengthen their negotiation position but might undermine the mediation process if revealed. For example, a previously undisclosed potential buyer for disputed assets or an alternative funding source might change how the mediator frames the discussion.
- Case Weaknesses While good attorneys acknowledge case weaknesses when preparing clients, strategic concerns sometimes dictate keeping certain vulnerabilities private from the mediator, particularly when these weaknesses aren’t likely discoverable by the opposing party.
B. The Risks of Information Withholding
While maintaining your poker face with the mediator can offer tactical advantages, it comes with significant risks that frequently outweigh the benefits:
- Limiting the Mediator’s Effectiveness
When you withhold critical information, you’re essentially asking the mediator to navigate with an incomplete map. A mediator who understands your true constraints and objectives can help craft creative solutions that address underlying interests rather than just splitting differences. - Missing Opportunity for Reality Testing
One of the mediator’s most valuable functions is providing reality testing—helping parties and their counsel evaluate positions against likely litigation outcomes. Without complete information, this reality testing becomes superficial or misguided. - Undermining Trust in the Process
Experienced mediators can often sense when information is being withheld. This can create a credibility gap that affects how the mediator perceives your other representations throughout the mediation.
C. Finding the Balance: Practical Information Management
The most effective approach typically falls between complete transparency and strict information control. Here’s how skilled attorneys navigate this delicate balance:
- Provide ranges rather than fixed points
Instead of stating a firm bottom line, consider providing the mediator with a realistic range within which settlement might be possible. For example, in a property damage claim, rather than revealing your $200,000 authority limit, share that settlement between $160,000-$225,000 could be possible depending on certain contingencies. - Use hypotheticals
Explore settlement scenarios hypothetically with the mediator before committing to specific positions. “If the other side were willing to include a confidentiality clause, how might that change their monetary demands?” This allows you to test waters without revealing your actual priorities. - Stage your information sharing
As trust builds throughout the mediation process, gradually share more information with the mediator. Early sessions might focus on general case strengths while reserving discussion of detailed settlement authority for later phases when the mediator has demonstrated discretion and effectiveness. - Be explicit about confidentiality expectations
Clearly communicate to the mediator which information may be shared with the opposing party and which must remain confidential. Most experienced mediators appreciate direct instructions like, “This valuation methodology is something you can share to help them understand our position, but our internal risk assessment numbers are strictly confidential.” - Calibrate based on mediator experience
With highly experienced mediators who have demonstrated confidentiality and strategic acumen in previous cases, consider greater transparency. With untested mediators, a more measured approach to information sharing may be prudent until their process and discretion are established. - Document-specific disclosure
Consider sharing select documents with the mediator that you wouldn’t provide in discovery, but only after discussing confidentiality expectations and the specific purpose for sharing. This can help the mediator understand your position without revealing your entire strategy.
II. COMMON INFORMATION MANAGEMENT MISTAKES
In hundreds of mediations, I’ve witnessed even experienced attorneys repeatedly make these costly information management errors:
- The “All or Nothing” Approach
Some attorneys operate at extremes—either sharing everything with the mediator or revealing virtually nothing. Both extremes typically undermine effective advocacy. The attorneys who share everything, including their bottom-line authority, often find the mediator pushing them toward that number. Conversely, those who share nothing limit the mediator’s ability to identify creative solutions and provide valuable reality testing. - The Inconsistent Confidentiality Instruction
Failing to clearly label what information is shareable versus what must remain confidential creates hazards throughout the mediation. I’ve seen attorneys casually mention sensitive facts or figures, then later become frustrated when the mediator references those details when speaking with the opposing party. Without clear guidance, mediators may inadvertently disclose information you intended to keep private. - The Premature Bottom Line Reveal
One of the most common mistakes is revealing your ultimate settlement authority too early in the process. This often occurs when attorneys, eager to appear reasonable, volunteer their bottom line before understanding the other side’s true flexibility. Once revealed, this ceiling (or floor) becomes virtually impossible to adjust, severely limiting negotiation opportunities later in the day. - The Credibility-Damaging Reversal
Some attorneys undermine their credibility by initially claiming firm limits, then later dramatically exceeding those stated boundaries. While flexibility is valuable, dramatic reversals signal either that earlier statements were deceptive or that the attorney lacks control over their client. Either interpretation damages the attorney’s effectiveness in current and future negotiations. - The Technical Information Overload
Particularly in complex property, construction, or bankruptcy cases, attorneys sometimes overwhelm mediators with technical information without clearly explaining its relevance to settlement positions. This often backfires when the mediator, unable to synthesize or effectively communicate this information, falls back on simply carrying numbers back and forth.
III. THE HIDDEN LANGUAGE OF OFFERS
The second critical aspect of information management concerns how offers are structured and timed. Offers in mediation are not merely economic proposals—they communicate intentions, attitudes, and predictions about future negotiation behavior.
A. How Offers Send Signals
- Opening Offers and Anchoring The first substantive offer in a negotiation creates a powerful anchoring effect. An extreme initial position might be intended to secure negotiating room, but it can unintentionally signal bad faith or unrealistic expectations. Conversely, a reasonable opening offer may signal confidence in your position while demonstrating good faith. The difference between an opening offer that facilitates productive negotiation versus one that triggers an impasse often lies not in the number itself but in how the number is presented and contextualized.
- Incremental Changes The pattern of concessions throughout mediation creates expectations for future movement. Consistent incremental concessions typically signal a methodical approach toward a middle ground. However, diminishing increments (offering progressively smaller concessions) can signal approaching a hard limit. Many attorneys fail to realize that the opposing party and mediator carefully track these patterns to predict your true settlement range. Inconsistent concession patterns often create confusion or mistrust.
B. Problematic Offer Patterns
Certain offer patterns consistently send problematic signals:
- The significant jump
Making a dramatic move after several small increments often signals desperation or case weakness. - The round number fixation
Insisting on psychologically significant numbers (like exactly $100,000) rather than calculated figures may suggest your position isn’t based on careful case valuation. - The late-stage hardening
Suddenly becoming more rigid after showing flexibility earlier in the negotiation can damage trust and suggest negotiating in bad faith. - The artificial deadline
Creating urgency through arbitrary time limits often backfires by generating resistance rather than concessions.
C. Timing Considerations
When offers are presented matters almost as much as their content:
- Early versus Late Substantial Offers Substantial moves early in mediation can demonstrate good faith and confidence but risk leaving money on the table. Conversely, holding significant concessions until late in the day communicates a more aggressive negotiation stance but risks running out of time if the other side responds in kind.
- Response Speed How quickly you respond to opposing offers sends its own message. Immediate responses may suggest little analysis or internal discussion occurred. Conversely, lengthy delays can be perceived as stalling tactics or internal disagreement.
IV. PREPARING YOUR CLIENT FOR MEDIATION SUCCESS
A crucial but often overlooked aspect of effective mediation involves preparing your client for the information management strategy you plan to use. Here’s how to ensure your client becomes a partner rather than an obstacle in your strategic approach:
A. Set Expectations About Confidentiality Zones
Before mediation begins, clearly explain to your client the three information “zones” that will be in play:
- Information shareable with everyone
- Information shareable only with the mediator
- Information that must remain completely confidential
Many clients mistakenly assume that anything said to the mediator is automatically protected from the other side. Clarify that mediators typically operate with implied permission to share information unless explicitly told otherwise.
B. Explain the “Why” Behind Information Control
Clients often resist information withholding without understanding its strategic purpose. Take time to explain concrete examples of how strategic information management can benefit their case. For instance, explain how revealing certain weaknesses to the mediator might help with reality testing, while revealing others might undermine your negotiating position.
C. Rehearse Responses to Direct Questions
Prepare your client for moments when the mediator asks direct questions about bottom lines, alternatives, or case weaknesses. Role-play these scenarios so they can practice providing thoughtful, measured responses that align with your strategy rather than impulsively revealing information that undermines your position.
D. Address the Transparency Temptation
Many clients, particularly in first party property or personal injury cases, feel a strong emotional pull toward “telling their full story” to anyone who will listen, including the mediator. Acknowledge this emotional need while helping them understand when complete transparency serves their interests and when it doesn’t.
E. Document Clear Authority Parameters
Before mediation, document clear settlement authority parameters with your client, including:
- Initial offer/demand positioning
- Anticipated incremental moves
- Final authority limits
- Conditions that might modify these parameters
This documentation serves two crucial purposes: preventing client-attorney disputes about what was authorized and helping you maintain a consistent position without needing to repeatedly consult your client during critical negotiation moments.
V. PRINCIPLES FROM ACTUAL MEDIATIONS
Note: The following principles are derived from numerous mediations I’ve conducted in South Florida. Any resemblance to specific cases is coincidental, as all identifying details have been removed and scenarios have been generalized to protect mediation confidentiality.
A. The Transparency Principle
In general, more experienced attorneys tend to share more information with the mediator than less experienced ones. They understand that mediation confidentiality protects their disclosures and that an informed mediator becomes a more effective advocate for realistic settlement options.
For example, in complex commercial disputes, attorneys who provide the mediator with a realistic settlement range early in the process—while maintaining a poker face with the opposing party—often achieve more favorable outcomes than those who keep the mediator guessing.
B. The Signaling Consistency Principle
Parties whose offers follow a consistent, predictable pattern typically generate less resistance than those whose offers appear erratic or arbitrary. The predictability creates trust in the process, even when the substantive positions remain far apart.
In one generalized scenario, a defendant in a business dispute made incrementally increasing offers throughout the day, each with a clear rationale. Although the plaintiff initially demanded significantly more, the methodical approach eventually led to settlement because the consistency signaled good faith negotiation.
C. The Explanation Effect
Offers accompanied by clear, logical explanations tend to move negotiations forward more effectively than unexplained numbers. This principle holds true regardless of whether information is being shared with or withheld from the mediator.
In numerous mediations across various practice areas—from property damage claims to personal injury cases to bankruptcy matters—I’ve observed that explained offers, even when the explanation is as simple as “we arrived at this figure by calculating X, Y, and Z factors,” generate more productive responses than identical offers presented without context.
VI. PRACTICAL STRATEGIES FOR MEDIATION SUCCESS
Based on hundreds of mediations across first party property claims, personal injury cases, bankruptcy proceedings, and other commercial disputes in South Florida, these practical strategies consistently improve outcomes:
- Decide information boundaries before mediation
Determine with your client what information can be shared with the mediator alone, what can be shared with the opposing party, and what must remain completely confidential. - Create a deliberate offer strategy
Plan your offer sequence and approximate amounts in advance, including how to explain each offer. - Analyze the signals your offers will send
Before presenting any offer, consider not just its economic terms but what it communicates about your confidence, flexibility, and settlement intentions. - Use the mediator as an information filter
When sharing sensitive information with the mediator, be explicit about what can be conveyed to the other side and how it should be framed. - Adjust based on real-time feedback
Pay attention to how the mediator and opposing party respond to your information management approach, and be prepared to adapt if your current strategy isn’t working.
CONCLUSION: THE ART OF STRATEGIC TRANSPARENCY
The most successful advocates in mediation master what might be called “strategic transparency”—the careful calibration of information sharing that advances client interests while building trust in the process.
Rather than maintaining a rigid poker face or revealing everything indiscriminately, these attorneys make thoughtful decisions about what information will help the mediator facilitate settlement and what information might undermine their negotiating position if shared.
Similarly, they craft offers that communicate intention and good faith while maintaining negotiating leverage. They understand that in mediation, information—both shared and withheld—is a valuable currency that must be spent wisely.
By approaching mediation with this nuanced view of information management, you can significantly improve your effectiveness as an advocate and increase the likelihood of achieving favorable outcomes for your clients.
About the Author: Ido J. Alexander is a certified mediator specializing in first party property claims, personal injury cases, bankruptcy matters, and other commercial and financial disputes in South Florida. With experience in over 600 completed mediations, he helps parties find efficient, creative solutions to seemingly intractable conflicts. Visit ClearEvolutionMediation.com to learn more about his mediation services and approach.