There is diverse opinion within the mediation community on whether a mediation should start with a joint session or separate sessions. How I start a mediation session depends on the type of dispute and the parties involved.
In those instances in which I do start with a joint session, I often witness the parties and/or their attorneys not using this opportunity effectively; they limit their opening statement to a factual recitation, keeping it “short and sweet.”
In his June 26, 2008 article entitled “Opening Statements in Mediation Talks Are Often Missed Opportunities”(opening-statement-in-mediation-talks-are-often-missed-opportunities) in the Los Angeles Daily Journal, Robert A. Steinberg suggests that the joint session should be viewed as the opportunity to soften up the other party and to humanize the situation: to put a face and feelings to the cold hard facts.
As a means of using the joint session to your best advantage (and to obtain creditability), Mr. Steinberg suggests several tools.
The first one is simple: introduce or re-introduce yourself, explain who you are and who is sitting with you. Explain that your client (if a representative of a company) has the full authority to settle the matter. State how you would like to be called and ask this question of the others.
Engage in small talk: try to find something in common with the other side so that you can create some bond or commonality with the other party. It may be something as simple as how bad or good the traffic was to get to the mediation, or a recent sporting event or news (e.g. Dodgers, Angels, Lakers, Clippers, Kings, etc.).
Mr. Steinberg next suggests that you state your belief in the mediation process, that you believe it is a process that works and that you are at the mediation in good faith to settle the dispute. But, he admonishes, these comments should be stated only with sincerity; if you do not believe in what you are saying, it will show.
He also suggests that, where appropriate, you should acknowledge the other person’s strong feelings, and you should state that you are not there to embarrass, upset or anger the other party. At the same time, “be careful not to say you understand the other side and its feelings. People sometimes do not like being told someone understands their feelings. Sympathize, do not empathize.” (Id.).
Thus, where a personal injury or death is involved, it is proper to express sympathy, but do so, only if you can be sincere.
Mr. Steinberg next suggests that you explain that you have thoroughly and objectively evaluated the matter and then state your position, its basis and note the fact that the parties have a good faith disagreement. As the author notes, “This is your best opportunity to show the other side that there is reason to your position and that the possible trial result, in view of the reasonableness of your position, is uncertain.” (Id.).
Finally, “close by emphasizing your willingness to listen and work through problems and your hope that, with effort and patience, on all sides, an agreement may be reached.” (Id.). The author again emphasizes to humanize yourself and your client.
In sum, be positive, be human and focus on the issues at hand. Or as has been often said, “separate the person from the problem” because “the person is not the problem; the problem is the problem.”
. . . Just something to think about.