From the blog of Nancy Hudgins
Early in my mediation practice, I met a lawyer at a cocktail party and we started talking about mediation. He said, in horror, “You don’t do those joint sessions, do you? I hate them.” I’ve thought about this for a long time, and the best answer I have is that this lawyer had never been trained in what can be accomplished at a joint session, and therefore, he was uncomfortable being in one.
I see joint sessions as opportunity. This is the only time during the pendency of a lawsuit that you get to talk directly to the other side in a non-adversarial setting. It is also the only time that you get to hear directly from the other side. Take advantage of it!
I’m a proponent of listening. As an advocate, listening can be a condition precedent to persuasion. Stephen Covey has advocated this for years: “First seek to understand; then to be understood.” So consider listening first, asking curious questions and keeping an open mind. What the other side says may reveal the solution to a settlement.
When it’s your turn to speak, speak directly to the other parties, not to their attorneys. What could you say, in lay terms, that would convince a layperson of your view? Metaphors and analogies can be very helpful here.
If in your judgment an apology would be helpful, consider whether you should give it or your client should give it. If you decide on your client (which is always more powerful), work with him or her on giving as complete an apology as possible. See, Lazare, On Apology. (Keep in mind that a bad apology is better than no apology at all.)
Your clients may be all fired up to continue the fight, even at the mediation. Let them know that the warrior they hired to represent them is prepared to do battle at trial, but that mediation requires a different skill set. Rarely are antagonistic, adversarial tactics helpful in a mediation. Collegiality, cordiality and collaboration are more likely to be productive. (For example, see my posts here and here on the Rule of Reciprocity.)
Walk your clients through the likely sequence of events that will occur. Let them know you expect them to be civil and cordial. Tell them how you plan to proceed. Remind them that patience is a virtue, especially during a mediation.