Court proceedings are governed by so many rules that there are books which set them forth and additional books in which the rules are interpreted and explained. When you mediate a dispute with ADR, there are only two (2) rules.
ADR RULE No. 1 Do not belittle or otherwise speak badly about the other party or any position he/she has taken, particularly in his//her presence. You may think whatever you want. However, .while we are working to settle the dispute, please keep any such negative or uncomplimentary thoughts to yourself. Voicing any such thoughts in the presence of the other party will tend to work to your disadvantage because it will only tend to anger him/her and cause him/her to become less likely to move from a prior position. Remember encouraging flexibility and compromise is key to reaching a mutually amicable resolution.
ADR Rule No. 2 There are no other rules. You can say whatever else you want, in whatever manner you choose, using as colorful language as you want. You will not offend the mediator; he’s heard it all before. However, as a matter of common courtesy, do not interrupt another person while he/she is speaking. Do not be concerned, you will be given every opportunity to speak your mind.
You can also produce any and all documents, photographs and other exhibits that you feel are important to your case. However, if you are going to produce such items for the mediator to review and to ask that the other side take them into consideration when reaching his/her position, it is always best that you provide a copy of the item(s) to the other side in advance of the mediation session. If there are items which you do not wish to divulge to the other side, you may still bring them to the attention of the mediator during a one on one private meeting with the mediator. During meetings outside the presence of the other party, everything said remains confidential. Unless the mediator is given specific permission to convey the information to the other party, that information will not be discussed with other party..
However, keep in mind that your “secret weapon” may be just the thing that will cause the other side to modify his/her position. Knowledge and information are powerful tools. It is often best that you permit the mediator to skillfully use them to help narrow the gap between the parties’ positions.