Mediation Joint Sessions: Are You Missing the Boat?

From the blog of Nancy Hudgins

Most mediations have a component of caucusing, where the mediator and one side will sit down together to discuss the case. Some parties and some mediators will negotiate in caucus during the entire mediation.

I’m going to suggest that you could be missing the boat by caucusing. We could start the laundry posts I’ve recently completed on persuasion:

1. Appreciation
2. Affiliation
3. Storytelling
4. Respect
5. Likeability
6. Out-Listening

It’s very difficult to use these persuasive negotiation skills to your client’s advantage when you are sitting in a room with your client and not sitting in a room with the other side. Not to mention the fact that you’ve ceded most of your power to the mediator, who is conducting the shuttle diplomacy. (Admit it. Don’t you cringe a little bit for the legal profession when you see a lawyer for the other side sitting reading a newspaper during the caucus phase of a mediation? Wouldn’t you at least want to keep your head in the game?)

In addition to not using the skills above, you and your client are missing out on a crucial part of any negotiation: information gathering. When the other side is doing the talking, you can look for and listen for nonverbal clues and verbal leaks. Mediators rarely leak like the other side because they are neutral and not emotionally attached to the information.

The challenge is in the joint session. Hone your persuasion and negotiation skills and rise to the challenge. Try staying in the joint session as long as possible. Impress your client by your skill at negotiation, not your small talk in caucus while the mediator is talking to the other side.


Nancy Hudgins

Nancy Hudgins, a San Francisco mediator and lawyer, began specializing in civil litigation in the 1970's. She has represented both plaintiffs and defendants, chiefly in personal injury, medical malpractice, elder abuse and product liability lawsuits, but also in a wide variety of complex litigation, including civil rights, fraud and class… MORE >

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