The joint session has fallen out of favor in mediations of litigated cases. Usually, the parties and their counsel go into separate conference rooms form the beginning and rarely if ever encounter each other during the course of the mediation. Mediators have come to the general conclusion that the joint session at the beginning of the mediation is too formal and adversarial and hardens rather than softens parties positions. But that does not mean that the joint session should be eliminated from the mediation toolbox. Joint sessions at the commencement of the mediation or during the course of the day still have a valuable role in the mediation process.
The joint session is the only time the parties may have an opportunity to address each other during the course of the litigation. If properly orchestrated by the mediator, the joint session can have a very cathartic affect on the parties and lead to resolution of the case. In instances where the parties have had a business relationship and no longer trust one another, a joint session can help clear the air and if not restore trust, at least give the mediator some ideas about what might help resolve the case. If one party has taken a very strong position on the strength of their case and refuses to engage in meaningful negotiations, a joint session where counsel exchange their views and the parties can hear the opposition may be just what is needed to move into negotiations.
I have often been surprised at what comes out in a joint session in terms of bringing the parties to agreement. In one recent mediation, plaintiff’s counsel was arguing with me all day about the strength of his case and the categories of recoverable damages. Toward the end of the mediation as the parties had reached their last demand and offer, I suggested that plaintiff’s counsel address defense counsel directly, assuming that he would continue to argue his case as he had to me. Instead, to my surprise, he told defense counsel that if he could see fit to raising his offer by a minimal amount, he could get his client to accept it. Not surprisingly, the case settled.
–Bruce
Bruce A. Friedman is a mediator with a national practice. With years of litigation experience behind him, he understands the goals of the mediation process and will do his best to ensure that the needs of both parties are met, justly and efficiently. For more information on the mediation services that Bruce A. Friedman provides, check out his website at http://www.FriedmanMediation.com, his profile at ADRServices.org, or call him at (310) 201-0010.
