Traditionally, mediations of litigated cases begin with a joint session in which the mediator invites both sides to explain their case. The mediator moderates the discussion to insure that each person has an opportunity to speak without interruption. Time may also be provided for rebuttals or to pose questions to the other side.
Recently we have seen a preference on the part of many lawyers to change the model so that the joint session is either abbreviated or eliminated. The reasons for this preference appear to be twofold: a desire to save time by avoiding restatement of positions; and unpleasant experiences with joint sessions that have not been properly managed.
Admittedly, there may be sound reasons for avoiding a joint session in some cases. If there is a high level of animosity or tension, it may be unwise to start with all participants in the same room. The joint session may have to be omitted or at least put off until later in the day. Omitting it should not be done routinely, however, because it provides important opportunities.
Make an Effective Opening Statement. The joint session is your opportunity to make an opening statement, in which you can accomplish several things.
• Speak directly, but politely, to the other side.
• Address your remarks to the opposing party and not just to counsel. Prior to the mediation all communications will probably have gone through the filter of opposing counsel, who may put his or her own spin on them. Hearing directly from you should be more effective.
• Talk in a realistic way about what a fact finder is likely to conclude from the evidence, not about what “really happened.” You may not change the other side’s mind, but you may be able to get them thinking about how a trial would play out.
• Acknowledge any weaknesses in your case rather than waiting for the other side to bring them up. Explain how you plan to deal with them if the case has to be tried.
• Give an effective reply, especially if you represent the plaintiff. You can use this time to summarize the arguments made by the other side, showing that you listened carefully to what they had to say, stating where you agree, but pointing out where you disagree.
• If your client presents well, and especially if he or she has not previously been deposed, the joint session will be a good opportunity to let the client speak.
Engage in Direct Dialogue. The joint session presents an excellent opportunity for parties to talk across the table and to see what their disputes really are all about. Parties usually seem quite sure that they know what the facts are, but facts are almost always in dispute. A direct exchange of opposing views will allow everyone to focus on the differences. By contrast, having the mediator shuttle between caucuses in an attempt to explain differing versions of the facts is far less effective and wastes valuable time. So long as all of the participants are interested in having a civilized conversation, a dialogue about the facts can be a very productive exercise.
Deal With Emotional Obstacles. A person who has had a strong emotional reaction to what has happened to them comes to the mediation wanting to be heard by the other side. The joint session can be the best means to that end, and for most parties it will be as close as they get to a day in court.
If you are on the other side of the case, you may not be anxious to hear the other party complaining or blowing off steam. Still, until the emotional obstacle has been removed, any progress toward an agreement will be difficult at best. Though it may test your patience, you should probably sit and listen politely.
Apologize. The value of an apology should never be overlooked. It may not settle the case by itself, but it can go a long way. An apology is not an admission of fault and should not be viewed as a sign of weakness. It is just an expression of empathy for what the injured party is feeling. Apologies must be sincere and not self-serving, and they are best given in person rather than through the mediator. A joint session, or else a special caucus, is the right setting for an apology.
Set the Tone. The attorneys’ statements in the joint session can set the tone for a productive mediation. They should be powerful, but low-keyed. You want to project an air of quiet confidence rather than a sense of righteousness. As in the position paper, the emphasis should be primarily on facts, rather than on legal theories or accusations.
Above all else, you must express your willingness to settle. Agreements are much easier to reach when the other side can see that you have the right attitude and that you are willing to take their point of view into account.
Present More Information. Joint sessions can be used more than once during the course of the mediation and for more than one purpose. The mediator may discover information in caucus that needs to be given to the other side, and that can best be communicated by reconvening all participants.
Make an Agreement. Sometimes parties can actually negotiate their agreement across the table. These cases usually involve business disputes in which the parties are sophisticated negotiators, accustomed to dealing directly instead of going through an intermediary. The principals rather than the lawyers will often take the lead. When the parties are not represented by counsel, it is not unusual at all to see a case settled in joint session.
An Important Caveat: Avoid Abuses. You must avoid threats, offensive remarks, and rude behavior. The use of words such as “lie,” “cheat,” “defraud,” and “malicious prosecution” is counterproductive. When you are tempted to use the joint session as an opportunity to intimidate the other side or to put them in their place, ask yourself again: Who is your audience? Will these tactics make them more inclined to see things your way? Or will they just harden their resistance? There is a line between “venting” and being abusive toward the other side. Expect the mediator to intervene if that line is crossed.
MICHAEL P. CARBONE is a senior mediator who has also served as an arbitrator and court-appointed referee. His dispute resolution practice has been built over a period of more than 25 years and covers a wide range of fields. His exceptional combination of transactional and litigation experience enables him to handle complex litigation and other challenging cases.
Michael resolves business and commercial cases, real estate disputes, employment claims, construction claims and defect cases, estate and trust matters, insurance issues, legal malpractice, corporate and partnership disputes, and personal injury cases. In his capacity as a court-appointed referee he has undertaken a wide variety of responsibilities, including sales and appraisals of real property, and the adjudication of trust accounting and administration matters.
He is a member of numerous dispute resolution panels, including the National Panel of Arbitrators of the American Arbitration Association. He is also listed on the mediation and discovery facilitation panels of several Superior Courts.
He is a founder and past president of The Mediation Society, and a member of many other professional organizations, including the Academy of Court-Appointed Masters, the Dispute Resolution Section of the American Bar Association, and the Association of Business Trial Lawyers.
Michael is a frequent author and speaker on alternative dispute resolution issues. He publishes a monthly newsletter entitled "Resolving It" which provides timely advice on strategies for successful mediation and discusses current issues, such as reforming the commercial arbitration process and mediating e-discovery.