Originally from Alternatives to the High Cost of Litigation

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So, at the transactional table of a mediation session, mediators strive to create a safe environment where counsel and parties feel safe to be open and candid. Here, surprise is not a tactic and is reframed as disclosure and good-faith communication.

My view that it should be a forum where by the second or third caucus, and certainly before economic and other proposals are exchanged, surprise has been eliminated.

It is not a place for counsel to spring “gotcha traps.” The experience of most mediators is that the smoking-gun document is usually guarded by counsel until they have a comfort level at which disclosure would push the other side to an acceptable final proposal.