By Brian Jerome
Particularly here in Massachusetts, long-held practice has been to start a mediation with a joint session among all parties and their counsel before breaking into individual private caucuses. A joint session is a meeting facilitated by the mediator where opposing parties and their attorneys face each other and speak directly to each other, rather than through the mediator. This gives disputing parties the opportunity to impart their perspectives, and address and listen to the other party directly.
Most Massachusetts neutrals would agree that over the past years there has been a decline or growing resistance to the joint opening session. Studies suggest that on the West Coast, use of the joint session has declined even more significantly.
Driving this change is the apparent belief that the joint session has lost value. Whether because that step of the process has become potentially too confrontational and counterproductive, or that particularly in more complex matters, the lawyers have prepared detailed mediation briefs, the case has been fully discovered, and all sides understand the other’s position, everyone just wants to get down to the business of negotiating without any distractions. Lawyers frequently assert that “everyone knows what the case is about,” or “we don’t want to have a meeting where people will just get upset,”
If the parties or their counsel approach the joint session as an opportunity to lash out at their opponents, the resulting alienation undoubtedly pushes the parties farther apart. And there are certain cases where it may not be appropriate or useful for the litigants to meet in person, including cases involving abuse claims or where personal animus is so extreme that bringing the parties together in the same room would be detrimental to the process. I have mediated cases where even counsel can’t spend much time together in the same room before fireworks erupt. Other options do exist: there are numerous forms of joint sessions such that the process design can include only the attorneys or only the participants most relevant to the matter.
Before deciding to forego a joint opening session, parties and their counsel may wish to consider some downsides of such a decision, and discern how that decision may result in losing some of the unique advantages of a carefully sculpted and mediator-moderated opening joint session.
As a commencement, the joint session allows the mediator to set the tone of the conference with all parties present, helping to ensure all participants concur and understand each other’s expectations and starting standpoints. For the mediator, the joint session is the best chance to establish the nature, purpose, and integrity of the mediation process, to get all parties committed to the process, and to work through difficult problems. The mediator is then able to provide a deeper understanding of their role, covering topics such as neutrality, confidentiality, risk assessment, party self-determination, time, cost savings, and closure.
Even when counsel or the parties do not wish to make formal opening presentations, they should be willing to remain together in a joint session to answer basic factual questions, identify key discussion topics, seek agreements regarding the law, streamline the issues, and/or consider other process adjustments. Formal discovery may not have been completed prior to mediation, or is inadequate to address key information useful for settlement; in such cases a joint session could provide information integral to resolution.
Foremost, however, a joint session provides almost unlimited opportunities for an effective mediation advocate to share and significantly advance the client’s interests and settlement goals, and to persuade the key decision-makers on the other side of the strengths of their case. In most instances, this group has never met face-to-face before the mediation session. There has likely been no forum or opportunity whereby the parties or their counsel have had the opportunity to fully set out their fundamental positions. Concern may also exist that critical messaging is not being heard or understood by decision-makers because it is being filtered through opposing counsel or administrators.
For example, plaintiff’s counsel in a mediation is often seeking to influence an insurance representative who has the ultimate settlement authority. The joint session may be the first chance to speak directly and in person to this critical decision-maker and express your view of the case, focusing on how you would like to approach settlement. To forego making an opening statement then enlists the mediator to be solely relied upon to transmit arguments of facts and law in private caucuses with the other side. No matter how talented and well prepared the mediator is, it is the parties and their lawyers who are best suited to directly present the strengths and basis of their own case.
Parties and counsel can also choose to provide pre-mediation briefs where appropriate directly to the opposing decision-makers and not keep them confidential to the mediator, so that the in-person presentation enhances the pertinent facts and law that constitute the burden of the case. Keeping mediation briefs confidential to the mediator may in certain circumstances be warranted, but in doing so, the mediator is again being relied upon to transmit your significant arguments to the opponent, particularly when the joint opening statement is also waived.
Most mediators have seen how an effective opening statement can be coupled with concise demonstrative evidence, a PowerPoint presentation that is neither too lengthy nor too wordy, photographs, key documents, or portions of key deposition testimony. This presentation has the effect of showing the other side that your case is well prepared and will be effectively tried if settlement is not reached.
With the already vanishing jury trial, joint opening sessions provide the parties with the closest thing to their “day in court”. While this may not be true for a large insurer or multinational corporation, the first-time consumer of mediation may come to the table expecting to be a direct participant in the process, and wants to feel that their positions and interests have been advocated, described, and heard by all – particularly the opponents – creating a feeling of direct participation and ownership of the process.
The joint session may be the only time an injured or aggrieved party feels heard; this allows them the opportunity to directly or through their counsel state their perspective and perhaps express anger or frustration. This venting is often like letting air out of a balloon: once feelings are expressed, the mediation can get to the real business of a negotiation no longer emotionally charged. Concerns over the possibility of such emotions getting out of hand are real, but an experienced mediator can minimize that possibility through pre-session instructions or pre-mediation conferences. A skilled mediator will also sculpt a process where parties and counsel are instructed to keep the tone positive, speak one at a time in uninterrupted fashion, and avoid unnecessary arguing or grandstanding.
Parties can certainly get their voices heard without a joint session with a mediator shuffling back and forth from room to room. A mediation that includes some joint process, rather than just private caucusing, however, tends to leave the parties with a greater sense that the process was fair and just. Studies have revealed increased party satisfaction and greater likelihood that the settlement agreement will be adhered to when the parties are involved directly in the process.
If the parties have any interest in a continuing relationship, relationship repair usually begins in the joint session, where disputants can communicate directly in a controlled environment. This is particularly critical where the parties desire to continue to work together, engage in a business venture, or maintain peace where they will continue to encounter one another after the mediation is over.
The greatest strength of a case may rest squarely with the plaintiff or the party directly. For instance, if a plaintiff makes a good witness and presents well, the plaintiff’s attorney may want the opposition to see and hear that in the joint session. Many insurance adjusters and key decision-makers come to mediation wanting to observe the plaintiff directly as their efforts to put a value on a case continue. Where a party’s demeanor or presentation may not be helpful to their case, counsel can choose to do all of the talking and reserve comments from their client to private caucuses with the mediator.
It may be important for an entrenched litigant to hear the other side’s point of view in a joint session as well. This is a useful reality check in many circumstances, allowing them to gain a better awareness and understanding of the other side’s positions and interests, and to more fully understand the risks and uncertainty of proceeding with litigation. Attorneys and parties want to watch, listen, and evaluate the opposition and their counsel in the joint session so they can learn more about the strengths and weaknesses of the opponent’s case.
The joint session also provides an opportunity for counsel and/or clients to express appreciation to the other side for coming to mediation or at least acknowledge something positive such as their willingness to negotiate and hopeful anticipation toward finding a mutually satisfactory resolution. Where appropriate, the joint session might also be used to provide an apology or showing of regret from one party to the other. The most effective apologies are those delivered directly face-to-face. The mediator can help integrate any such apologies in a joint session. Such comments serve as icebreakers that set a positive problem-solving tone and are confidential under the terms of the mediation agreement.
The most valuable trait of effective DR processes such as mediation is their flexibility to fit the format to the case. Experienced neutrals can be of valuable early assistance to parties and their counsel in preparing for the mediation session and in making decisions so as to create a process that will be most productive. In many cases a pre-mediation conference call may be useful, and many mediators will proactively arrange this. Parties and their counsel are encouraged to bring to the attention of the mediator in advance any particular issues that need to be factored into the process being designed.
Participating in a mediator-crafted joint session can offer unique opportunities for parties and their counsel to more fully engage in the collaborative nature of the mediation process, better advance their positions, understand more fully the positions of their opponents, and increase the likelihood of reaching lasting settlements. Before foregoing the joint session, we encourage you to speak to an experienced neutral who can assist parties and their counsel in formulating an appropriate joint session event that will take into consideration the varied factors noted above to assure maximum effectiveness and productivity.