By Kevin Thomas
monthly series of short articles on successful mediation advocacy.
Tip # 4:
“Be Creative in the Joint Session.”
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.
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?
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.
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
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.
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.
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.
never assume that decision-makers know what the attorneys know –they
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.
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.
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.
month I will explore one new tip to using mediation successfully.
“Be Real: Condolences, Apologies, & Sincere
McIvers is a full-time mediator since 1996, serving California and the Western
United States. He is a Fellow and
Vice President of the International
Academy of Mediators, and a Diplomate of the
of Distinguished Neutrals.