In defense of mediation's joint opening session

By Brian R. Jerome
BridgeTower Media Newswires

BOSTON - Parties and their counsel have historically started mediation with a joint session before breaking into individual private caucuses.

At a joint session, opposing parties and their counsel speak directly to each other, facilitated by the mediator. The parties get to air their perspectives and hear and address those of the other side.

Resistance to the joint opening session has grown in recent years, many neutrals would agree. Studies suggest that the decline in using joint sessions on the West Coast has been even steeper.

Attorneys and their clients seem to believe that the joint session has lost value, that it often becomes too confrontational or counterproductive. In more complex matters, the lawyers may have prepared detailed mediation briefs, and, with discovery complete, everyone understands the other side's position and just wants to get down to the business of negotiating.

If the parties only see the joint session as an opportunity to lash out at their opponents, it will indeed drive the parties farther apart. In some cases, such as those involving claims of abuse or with extreme personal animus, it may not be appropriate or useful for the litigants to meet in person.

I have even mediated cases in which counsel can't be in the same room for long without fireworks erupting. The process can be designed to mitigate those issues, by including only attorneys or only participants most relevant to the matter.

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Before you say 'no'

Before deciding to forego a joint opening session, parties and their counsel should consider the unique advantages of a carefully sculpted and mediator-moderated opening joint session.

The joint session allows the mediator to set the tone of the conference with all parties present, helping to ensure that all participants understand each other's expectations and starting points.

For the mediator, the joint session is the best chance to establish the integrity of the mediation process, get all parties to commit to the process and work through difficult problems. The mediator is able to foster a deeper understanding of their role, covering topics such as neutrality, confidentiality, risk assessment, party self-determination, time, cost savings and closure.

Even when counsel or the parties do not wish to make formal opening presentations, they should be willing to remain together in a joint session to answer basic factual questions, identify key discussion topics, seek agreements regarding the law, streamline the issues, and consider adjustments to the process.

Formal discovery may not have been completed prior to mediation, or it may have been inadequate to lay bare key information needed for settlement. In such cases, a joint session could provide information integral to resolution.

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Lots to be learned

Beyond all else, a joint session provides almost unlimited opportunities for an effective mediation advocate to share and advance the client's settlement goals while persuading the decision makers on the other side of the strengths of their case.

In most instances, this group has never met face to face, and there has been no opportunity for the parties to set out fully their fundamental positions. There also may be a concern that, because critical messaging is being filtered through opposing counsel or administrators, decision makers are not getting the message.

For example, plaintiff's counsel in mediation is often seeking to influence an insurance representative who has the ultimate settlement authority. The joint session may be the first chance to speak directly to this critical decision maker and express your view of the case, focusing on how you would like to approach settlement.

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Parties know best

If a party foregoes an opening statement, the mediator will be the sole conduit of arguments of facts and law with the other side. No matter how talented and well prepared the mediator is, it is the parties and their lawyers who are best suited to present the strengths and basis of their case.

When appropriate, parties and counsel can also choose to provide pre-mediation briefs directly to the opposing decision makers rather than keep them confidential to the mediator. In that way, the in-person presentation will enhance the pertinent facts and law that constitute the burden of the case.

Keeping mediation briefs confidential to the mediator may be warranted in certain circumstances, but in doing so the mediator will be relied on to transmit your arguments to the opponent, particularly when the joint opening statement is also waived.

Most mediators have seen how effective an opening statement can be when coupled with concise demonstrative evidence, a PowerPoint presentation that is neither too lengthy nor too wordy, photographs, key documents or portions of key deposition testimony. This presentation shows the other side that your case is well prepared and will be tried effectively if settlement is not reached.

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Airing of grievances

Given that jury trials continue to vanish, joint opening sessions provide the parties with the closest thing to their "day in court." While this may not be true for a large insurer or multi-national corporation, the first-time consumer of mediation may come to the table expecting to be a direct participant in the process and wanting to feel that his positions have been heard by all, particularly his opponents.

The joint session may be the only time an aggrieved party feels and gets to express anger or frustration, either directly or through counsel. This venting is often like letting the air of out a balloon: Once feelings are expressed, the real business of a negotiation can begin, absent the emotion.

While such emotions can get out of hand, an experienced mediator can minimize that possibility with pre-session instructions or pre-mediation conferences. A skilled mediator will also sculpt a process in which parties and counsel are instructed to keep their tone positive, speak one at a time, and avoid unnecessary arguing or grandstanding.

Parties can still get their voices heard with a mediator shuffling back and forth from room to room, too. However, a mediation that adds some joint process to private caucusing tends to leave the parties with a greater sense that the process was fair and just. Parties who have been directly involved in the process achieve greater satisfaction and are more likely to adhere to the settlement agreement, studies reveal.

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Looking to the future

If parties have any interest in repairing their relationship - either for a future business venture or just to keep the peace - that process usually begins in the controlled environment of the joint session.

A joint session also affords the opportunity to illuminate the greatest strength of a case, which may be the plaintiff himself.

If a plaintiff presents well as a witness, that will be useful information to many insurance adjusters and other key decision makers, who come to mediation to observe the plaintiff to help assign a value to their case. If a party's demeanor or presentation may not be helpful to his case, counsel can choose to do all the talking and reserve comments from the client to private caucuses with the mediator.

Hearing the other side's point of view in a joint session may also serve as a useful reality check, allowing an entrenched litigant to understand more fully the risks of proceeding with litigation. Attorneys and parties can use the joint session to learn more about the strengths and weaknesses of an opponent's case.

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Making amends

The joint session also provides an opportunity for counsel and their clients to express appreciation to the other side for coming to mediation or at least acknowledge something positive, such as their willingness to negotiate and mutual hopes of finding a satisfactory resolution.

When appropriate, the joint session might also be used to provide an apology or expression of regret, which are most effectively delivered face to face. The mediator can help integrate any such apologies in a joint session. Such comments serve as icebreakers that set a positive problem-solving tone and are confidential under the terms of the mediation agreement.

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Conclusion

Participating in a mediator-crafted joint session can offer unique opportunities for parties and their counsel to engage more fully in the collaborative nature of the mediation process, advance their own positions, understand more fully their opponents' positions, and increase the likelihood of reaching lasting settlements.

Instead of foregoing the joint session, parties should speak to an experienced neutral who can assist parties and their counsel in formulating a joint session incorporating the above considerations to maximize its benefits.

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Brian R. Jerome founded Massachusetts Dispute Resolution Services in 1991. He also is the founding chair of the Massachusetts Bar Association's Dispute Resolution Section. He can be contacted at bjerome@mdrs.com.

Published: Fri, Aug 04, 2017

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