Beware! A Trojan Horse has entered the world of dispute resolution from coast to coast and north to south. This Trojan Horse is the ever increasing tendency of plaintiff and defense attorneys, claims adjusters, risk managers and company officials to regularly dispense with a joint session at the beginning of a mediation. Granted, there are mediations occasionally with very difficult personalities, strong emotions, or hurt feelings that dictate dispensing with an opening joint session. This should by far be the exception not the rule.
Some attorneys and their clients or claims officials are very concerned about offending the opposing party or attorney and also want to avoid “wasting time” in a joint session. Thus, many people deem it best to start a mediation with private caucuses and spend the entire mediation process in those separate caucuses. Obviously, the human interaction and dynamics (even if very brief) between the opposing sides is missed. Most importantly, there will be missed opportunities.
A joint opening session was designed for a modest amount of “meet and greet”, the opportunity for the parties themselves and their counsel to make limited substantive points, and to give parties an initial opportunity to participate in the mediation process. Unfortunately, in my twenty three years of mediating, I have seen this trend away from the opening joint session get stronger and stronger. Some of the missed opportunities are the following:
- A defense attorney, adjuster or defendant apologizing to a grieving family (if appropriate, this can pay big dividends);
- The defense reassuring the Plaintiff that their group is present with sufficient time and intends to work with the Plaintiff to try to reach a resolution;
- The Plaintiff and/or family members having the chance to emotionally and substantively have his or her say directly to the defense group;
- Learning something new or having items clarified by the opposition;
- Verifying where the previous negotiations ended;
- Observing the appearance and demeanor of the opposition
I submit to those heading into their next mediation to think long and hard before passing up the opportunities available from a beginning joint session. Likewise, attorneys should take at least a little time to organize their strategy and thoughts for the comments to be made in the joint session. The thoughts and strategies should be shared prior to mediation with the client and any claims adjuster. Also, attorneys should encourage them to at least briefly participate in the remarks in the joint session. Sometimes clients and adjusters can “score more points”and really help the overall process in a joint session than the attorneys themselves.
In conclusion, don’t miss the opportunities that are available when everyone in a mediation gets together in the same room. This can set the stage for a successful mediation. I have witnessed so many good and informative things occur at a beginning joint session. Give serious thought to your opening comments. If done appropriately, the chances of upsetting the opposition are very small. The time spent in the joint session may shorten the length of the mediation. Rarely, have I ever seen a joint session irreparably “poison the well” for the remainder of the mediation.
Frank S. Hamlin
Hamlin Dispute Resolution, LLC
Little Rock, Arkansas and Memphis, Tennessee
October 28, 2015