As many of you know, I make it a practice to call each attorney a few days before every mediation to privately discuss how to design the mediation process for optimal results. During the course of these pre-mediation telephone conferences, I routinely ask whether it might be helpful to engage in a joint session at some point during the mediation. With rare exception, I encounter a palpable distaste — sometimes bordering on actual disdain — for the use of joint sessions.
Those who bristle at the mere mention of a joint session might find two of my more recent experiences insightful. Taken from mediations conducted on consecutive days last month, both involved policy limit demands in admitted liability disputes.
Within the first half-hour of the “Tuesday” mediation, it was apparent that plaintiff would never accept less than the policy limit and that defendant’s carrier was not prepared to meet the demand. Counsel for plaintiff was certain he had “opened the policy” and, convinced that the claim had value far exceeding the policy’s limit, was committed to taking the matter to trial if not resolved that day.
With negotiations at a standstill, I suggested a mid-mediation joint session, partially to demonstrate to defense counsel and the claim representative that counsel for plaintiff was serious and partially to demonstrate to counsel for plaintiff that the claim representative could not obtain policy limit authority without additional information.
The parties agreed to meet and, as I sat back and observed, the claim representative explained her predicament, taking great pains to make clear that she was not an impediment to settlement but could actually be a potential ally if she was provided with sufficient documentation to meet the strict guidelines imposed upon her by the carrier. Persuaded that the claim representative was sincere, and better understanding her need for additional information, counsel for plaintiff agreed to provide what she needed. As of last week, the information had been provided and plaintiff was awaiting defendant’s response.
The “Wednesday” mediation was the converse of the “Tuesday” mediation, in that nothing was going to persuade the insurance carrier to offer the policy limit. Though plaintiff and her counsel appeared unwilling to compromise, I again suggested a mid-mediation joint session, this time for the sole purpose of helping plaintiff and her counsel understand why the insurance carrier valued the claim as it did.
The parties again agreed to my suggestion, and counsel for defendant — employing the utmost diplomacy, empathy and respect — gently but effectively explained to plaintiff and her counsel why the insurance carrier’s valuation of the claim differed so dramatically. Within the next hour, the parties had reached a resolution.
Joint sessions are not something that need be loathed nor feared. When conducted at the right time, in the right way and for the right purpose, joint sessions often prove to be just what it takes to prevent a needless impasse.
Next time a mediator asks whether you’re willing to consider a joint session, venture beyond your comfort zone and say “yes.” Better yet, propose it yourself!
As always, it would be my pleasure to assist you and your client in the dispute resolution process. Please don’t hesitate to contact me if I can be of service.
Best regards,
Floyd J. Siegal