Those who’ve worked with me know I’ve made it a cornerstone of my practice to try to connect with each attorney before mediation to discuss how to design the mediation process for optimal results. During the course of these pre-mediation calls, I routinely ask counsel whether they’re open to engaging in a joint session at some point during the mediation. With rare exception, their response suggests a palpable distaste — often bordering on actual disdain — for any form of joint session.
Those who bristle at the mere mention of a joint session might find a recent experience insightful.
It was a pre-litigation/multi-party dispute. Counsel for the husband/wife claimants believed it would be more productive to mediate in-person and he ultimately persuaded all other counsel to do so.
After first meeting privately with the claimants and their counsel, I concluded it would be best to then meet jointly with the three attorneys representing the various respondents, without their clients. That proved to be just the first of several joint sessions that would take place that day.
During that first joint session, the four of us engaged in a brainstorming session about creative ways to resolve the underlying dispute, leading me to suggest that the next step was to invite their respective clients to join the conversation. Everyone agreed and we moved to a larger conference room for the second joint session.
The discussions that took place during the second joint session were productive, leading me to next suggest a third joint session — this one limited to counsel only, including counsel for the claimants. My suggestion was met with general unease and opposition, but I explained why I felt that building a relationship of trust with counsel for the claimants was an essential step in the resolution process. Ultimately, everyone acquiesced.
We moved to yet another conference room for the third joint session of the day, where the discussions amongst the four attorneys could not have gone any better. Counsel for the claimants proved to be the collaborative, problem-solving partner I had anticipated, developing instant rapport with all other counsel.
The success of the third joint session led me to make my most audacious suggestion of the day —a true joint session with all of the parties and their counsel, offering the claimants an opportunity to recount for everyone the events that had given rise to the dispute. After some gentle prodding, eveyone agreed.
We reconvened in an even larger conference room. I sat at the head of the table, with the claimants and their counsel seated on the right side. The three attorneys for the respondents, together with their respective clients, sat on the left side.
The final joint session of the day was a resounding success. Claimants were likeable and credible. They told their story without anger and without placing blame, explaining their predicament and how it had impacted their lives and the lives of their two young children. Very few questions were asked, but everyone immediately agreed the opportunity to hear from the claimants had been invaluable.
A single in-person mediation, involving ten participants that utilized several different joint sessions, in several different conference rooms, to serve several different purposes. The first to strategize, followed by a second to secure the buy-in of the respondents, followed by a third to establish rapport and trust amongst all of the attorneys and a fourth to provide the claimants with an opportunity to be heard. The joint sessions were civil, respectful, collaborative, solution-oriented, creative and, ultimately, compassionate and empathic.
Joint sessions need not be loathed nor feared. When conducted at the right time, in the right way and for the right purpose, a joint session can often be the most valuable of the several tools in a mediator’s toolbox.
As always, it would be my pleasure 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