I’m always surprised when an attorney resists or outright rejects my suggestion that he or she communicate directly with opposing counsel during a mediation. For reasons that escape me, many attorneys absolutely loathe the idea of talking to one another, preferring that every point, every piece of relevant information, every factual or legal argument, and every settlement demand and offer be delivered by the mediator. So, when counsel embraced my recommendation a few weeks ago that they talk to one another directly before engaging in any settlement negotiations, they scored points with me and — more importantly — with each other.
From the briefs, it was apparent the two sides had vastly different views of the evidence. Convinced that plaintiff’s proposed opening demand would be a non-starter, and fearing it might actually be detrimental to engage in formal settlement negotiations, I encouraged counsel to first sit and talk with one another to discuss the facts. To their credit, they agreed. Equally important, each recognized the purpose was simply to share information with the other, without “arguing” their respective positions.
Counsel for defendant tactfully shared previously unknown information with counsel for plaintiff, who — as I anticipated — realized it might be best to continue the mediation to another day in order to allow time to engage in additional discovery. Before committing to a continuance, however, he wanted an opportunity to discuss the new information with his client, who had flown in for the mediation.
After talking at length with his client, counsel for plaintiff decided it might be worth engaging in settlement negotiations after all, but with a revised opening demand. Two hours later, the parties reached a resolution!
As a result of very candid conversations, neither side felt the need to posture with one another, and a mediation that would otherwise have been unproductive and deemed a failure proved instead to be a textbook example of the value of face-to-face communication.
There are important points to glean from the mediation that took place last month: (1) talking to one another face-to-face during a mediation need not be feared and need not be confrontational; (2) mediation — unlike the courtroom — provides the perfect forum for information-sharing and problem-solving; and (3) problem-solving is a cooperative and collaborative endeavor.
In other words, talking to one another during mediation might make it easier to reach a resolution, which, of course, is the point for agreeing to mediate in the first place.
As always, I would be pleased to assist you and your clients in the dispute resolution process. Please don’t hesitate to contact me if I can be of service.
Best regards . . .
Floyd J. Siegal