Failure to gather the necessary data before mediation is like setting out on a journey without a map. Although you may arrive at your destination, it is unlikely that you will have taken the most direct route. The task of gathering data and information is pragmatic. There must be enough information to make decisions. At the same time, the gathering of information need not unduly delay resolution nor significantly increase costs; it is unlikely that 100% of the data can or should be assembled. Disputants, with the assistance of their lawyers, need to determine how much data they require at what cost of time and money. They need to answer the question: What data is necessary to make decisions?
Mediators often assist disputants to determine what data they will need. Both lawyers and disputants are involved in gathering data and information. Lawyers will apply a legal analysis to the facts. This chapter reviews the types of data and information that may be useful to gather, including a Data and Information checklist. There is also a Risk Analysis checklist to facilitate the legal analysis, to identify settlement parameters and to clarify the costs of not settling at mediation. Chapter 8 concludes with tips for gathering and sharing data and information.