By Kevin Thomas McIvers

A monthly series of short articles on successful mediation advocacy.

Tip # 4:  “Be Creative in the Joint Session.”

About six years ago, I had an enlightening experience with a joint session.  Plaintiffs’ counsel graciously invited the defense to speak first.  After a courteous defense presentation, Plaintiffs’ counsel rose to his feet, pointed and shouted:  “Everything she just said is bullsh__.”  Oh, the magic of mediation!  The lesson learned was that one must carefully design the mediation process, including joint session, to fit the people and the dispute.  One model does not fit all.

A poorly conceived joint session can actually impede mediation.  Most lawyers make something akin to a closing argument, polarizing the sides with zealous advocacy.  Some are concerned that the clients will actually believe the advocacy, making it harder to achieve reasonable compromise.  Others are reluctant to share evidence, for fear that it will help the opponent at trial.  A few attorneys even ask to bypass this stage of mediation entirely.  What are the goals of the joint session?  How can it be creatively structured to maximize the potential for a good settlement, while avoiding these problems? 

Briefly, there are four goals for the joint session:  (1) Education of attorneys and decision-makers/clients; (2) Demonstrating competence and resolve; (3) Giving the clients a “day in court;” and (4) Cultivating a culture of resolution.  In disputes with ongoing personal or business relationships, item #4 (the Culture of Resolution) may be the most important.  In a typical litigated dispute, items #1-3 will predominate.  If any of these goals are significantly undermined, the prospect for settlement is reduced.

Where does the creativity come in?  In working with the mediator in advance on the structure, content and tone of the joint session for each case.  You may need to initiate this discussion (some mediators will not).  There are many creative ways to structure the interaction.  There are no rules.  Thoughtful attorneys and mediators can fashion a joint process in any way that works.  A typical closing argument-type presentation can be useful, if the advocates are civil and the content of the case is not highly emotionally charged.  In those more heart-wrenching cases (wrongful death, molestation, crippling injury, business collapse, etc.), a modified joint session may be best.  Some examples include:

ü      Professionals Only:  Invite the clients who can not bear the painful discussion to wait elsewhere.  Explain in advance that this is done out of sensitivity for their grief, and that all important information will be conveyed more comfortably in private.

ü      Partial Client Attendance:  If a client needs to hear their case presented (“day in court”) but would not constructively receive the other side’s presentation,  excuse that client after their attorney speaks, and have an in depth discussion thereafter.  Prep that client not to be locked in to the story presented by her own lawyer, and to expect other points to be discussed privately.  On the other hand, sometimes it is important for a client to experience the pain of hearing the unpleasant realities from the other side.

ü      Limited Issues:  When some issues will never be a source of consensus and are well known to all, pre-arrange to focus only on the issues which might really help get to settlement.  But never assume that decision-makers know what the attorneys know –they usually don’t.

Think in advance about what presentation would most likely inspire the opponent to make a settlement decision favorable to your client.  Each dispute is unique, and will present a few central issues which drive settlement.  Whether you give a thorough or focused presentation, build your comments around those issues:  a key element of proof; sympathy for a catastrophic injury; credibility of parties or key witnesses; jury tendencies; etc.  Deciding how much information to share is tricky.  All key evidence is usually revealed before trial, so there is no benefit to holding back.  If there are important secrets, tell the opponent a little (or hint) about this evidence, and offer to share more as the negotiation progresses.  You may also show the mediator (in confidence) the evidence, and authorize very limited comment to the other side.  Seek the mediator’s guidance about whether they are serious about settlement, and when your revelations will be truly helpful. 

As to the tone of presentation, quiet confidence and courtesy are much more effective than rude, aggressive tactics.  If opposing counsel is pathologically uncivil, let the mediator know and fashion the initial stage accordingly.  It is occasionally best to skip the joint session entirely.

Think creatively and work with the mediator to fashion a process that will work for you.  The joint session can be a powerful tool, when used wisely.

Each month I will explore one new tip to using mediation successfully.   Next month:  “Be Real: Condolences, Apologies, & Sincere Concern.”

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