As an attorney, when I began to mediate cases for clients, we usually started mediation with a joint session. Over the years, that has declined. Now as a full-time mediator, I’m usually told by counsel that they do not want a joint session, and the joint session will get in the way of a settlement.
Since becoming a mediator, I’ve realized that most everything I thought as a lawyer about mediations, at best, was naïve.
SIX ADVANTAGES OF A JOINT SESSION
- Worst case, you hear the other side’s case. Even if your case does not resolve, you’ve got a better picture of the perspective of the other side and of that side’s counsel. You’ll have an opportunity to see key evidence to support that position and the perspective that the party is likely to present to a jury. This can be invaluable in getting a case ready for trial.
- Your client will have an opportunity to be heard. Often when a suit is filed, the motivation can be more than seeking monetary recovery. As attorneys, this is usually our focus. However, clients will often feel that they have not been heard. Parties often feel that the other side just has not heard them and has no respect for their position. Sometimes, parties can feel that their own counsel has not really heard their real concerns.
- The joint session saves time. A joint session allows for basic instructions and explanations, to allow the participants to familiarize themselves with the physical layout, and the plan for the mediation. The mediator provides an explanation of the process and an opportunity for questions, as well as an opportunity for a brief presentation of the case.
- You can assess your client. In my time as a trial lawyer, I never allowed my client to speak in joint session. I did not think it could do anything but potentially hurt the case. However, allowing your client an opportunity to speak in a joint session can help you to see how the person will appear in court, and can help your evaluation. Sometimes depositions and office meetings do not give as good a look at the client as speaking in a joint session does.
- Venting allows for progress. Allowing parties to speak allows for key people to move from dwelling on the past toward a view of present circumstance, and ultimately a look toward the future without the lawsuit. Whether from the Plaintiff’s viewpoint, or a Defendant’s viewpoint, the focus on something that happened months or years earlier can be a stumbling block in taking care of today’s needs, and planning for tomorrow. Settlements of past disputes can only take place when the parties are ready to move from the past to the future. Allowing the party an opportunity to discuss those problems can allow them to move forward. Moving forward is the only way to resolve a dispute.
- You can show empathy and lower the guard of the other side. You will have the opportunity to demonstrate that you understand (and sympathize) with the other side (even if you don’t). If the opposition sees that you do understand where they are coming from, what they’ve said, you will go a long way toward dispelling suspicion of you and your client, and this will help move the case toward resolution. Genuine compassion will do nothing but help in getting a case resolved.
TWO REASONS NOT TO HAVE A JOINT SESSION
- You (or your client) will only aggravate the other side by speaking out. There is certainly an opportunity for advocacy in court. Even in mediation, advocacy in a joint session is appropriate. However, using statements intended to inflame the other side do just that, and create an atmosphere that makes resolution less likely.
- Safety. If there is a genuine concern that a party will feel threatened by the other side, or that there may be an actual threat, a joint session should not take place. This seems to be more likely in a divorce or family law matter than in a personal injury claim, but I have seen it in a malpractice case or other cases involving racial, religious or gender issues.
I would welcome any thoughts you have on the topic, and may well add or explain some of these thoughts. I’d also welcome your thoughts on other topics, or things to address in being an effective mediator or participant. As always, feel free to drop me a line (scott@AusTexMediation.com) or give me a call (512-423-3996).