Our recent article devoted to the potential benefits of conducting a joint session at some point during the mediation process really requires a follow-up.
Undoubtedly, that missive has motivated one and all to consider the possible benefits of a joint session in maximizing client satisfaction and achieving the objectives of the client. Now that we have reached that point, one might think the next step is “alright, let’s get together and just start talking” and all the benefits of a joint session Hurford identified will be achieved. WRONG.
Effective joint sessions just don’t happen by giving parties carte blanche to talk; like all other aspects of the mediation process preparation and planning are essential.
What’s the Point of a Joint Session?
Two of the fundamental purposes of the joint session are to persuasively impact the opposing party’s best alternative to a negotiated agreement (“BATNA”) and enhance the effectiveness of the discussions that will take place between the mediator and each party during subsequent private caucuses. The purpose of the joint session is not fuzzy or undefined – if the joint session will only entrench a party and not generate effective discussions between the mediator and each party during subsequent caucuses, or will be counterproductive to having such discussions, don’t bother holding a joint session.
Typically, the discussions each party wants the mediator to explore with the opposing party during the private caucus involve at least the following:
- Obtain a further understanding and evaluation of the opposing party’s positions;
- Determine whether the other party can be trusted to entertain and enter into a “reasonable settlement;” and
- Explore that information and those legal positions that might impact the other party’s BATNA.
If, in fact, a party wants to generate these private discussions between the mediator and the opposing party, then the joint session should be planned accordingly.
The planning for a joint session begins well before the day of the mediation. When the joint session is discussed and agreed to during the pre-mediation planning conference call, the format of the joint session is also discussed. In particular it is important to come to agreement on:
- Who will be present (and who, if anyone, should not be present);
- The approximate length;
- A preliminary discussion of the issues to be addressed (that will be further refined in subsequent individual discussions with the mediator); and
- Certain basic ground rules that will be followed.
Once the mediator receives the exchanged mediation summaries, the mediator will have a subsequent independent discussion with each party to ask clarifying questions, determine if counsel could benefit from the mediator’s assistance in addressing a client’s issues or concerns, probe into the interests of the party, and generally discuss the objectives desired from the mediation (this does not mean ascertaining that party’s “bottom line”). At that time, the mediator and the party may also explore those points that might be made most persuasively during the joint session that have the greatest potential of impacting the BATNA of the opposing party. This discussion may focus on certain key facts, legal principles, the attitude and predilection of the assigned judge, the nature and extent of damages, verdicts in comparable cases, the anticipated quality of witnesses, etc. – essentially what is the attorney’s most compelling story.
Impacting BATNA --Trial Advocacy v. Mediation Advocacy
Optimally the presentation will focus on no more than three or four of the most persuasive points that are the glue of the party’s theme (additional points can always be raised and explored during the private caucuses). This will provide the attorney the opportunity to do what attorneys do best – argue the facts and the law in the most persuasive fashion that is geared to having an optimal impact on the intended audience (opposing counsel and the opposing counsel’s client). Such a presentation at the joint session will add focus, force and persuasiveness to the discussions you want that mediator to have with the opposing party during the private caucus and commence the process of having the opposing party re-evaluate its BATNA.
Just a quick thought on the intended audience. Mediation advocacy and trial advocacy are radically different in purpose and tone. In trial advocacy, the goal of the attorney is to convince a judge or jury that the “other guy” did something wrong or failed to do something right. No one would attack the jury or judge personally and suggest it is effective persuasion. The jury is certainly not being attacked personally; the jury is being asked to make any number of determinations about the “other guy,” i.e., the “other guy” is not credible, the “other guy” did something wrong, the jury needs to protect society from the bad acts of the “other guy” (the reptilian theory of litigation), etc.
In mediation advocacy, however, the “other guy” is the audience who you want to move to a position that is consistent with your BATNA – in essence, you need that “other guy” to come to an agreement with you. Mediation advocacy that focuses on why the “other guy” is a bad actor or is otherwise untrustworthy or a liar, is, in my experience, not particularly effective in having that “other guy” agree with much less acknowledge the merits of your position. It really goes to the truism that, “If you wish to make a man your enemy, tell him simply, ‘You are wrong.’ This method works every time.” The focus is not why the “other guy” is a liar or wrong, but why a jury or judge, who has no prior knowledge or expertise concerning the nature of the dispute or the parties, will more likely conclude that the “other guy” is liable or why you or not liable.
Effective mediation advocacy underscores the risks a party confronts and why your theory of the case given the facts and the law is far more compelling and has a greater likelihood of being accepted by a judge or jury. The odds are such an approach has a better chance of accomplishing the result you desire -- positively impacting the other party’s BATNA and the quality of the discussions that take place during the private caucus.
Determining Party Interests
If another of your mediation goals is to evaluate to the extent practicable the opposing party’s position and interests, consideration may be given during the joint session to briefly raising those issues. If, after consideration of the opposing party’s BATNA, you believe reputation, good will, an ongoing relationship, the memory of a loved one, making certain others are not injured, etc., are of importance to the opposing party, there is no downside in raising those as potential interests during the joint session, evaluating the party’s reaction, and suggesting those are certainly valid interests and concerns. Such a presentation during the joint session certainly sets the stage for the mediator to more fully explore those and other interests during the private caucus. While most mediations may well be “all about the money,” discussions of this nature during the private sessions often lead to an exploration of non-economic terms important for a resolution that might otherwise not have been explored. In some cases, these non-economic terms can have a positive impact on the monetary demands and offers.
Establishing Some Trust
As discussed in the prior article on joint sessions, appropriate “trust” can be most important to the dynamics of a successful mediation. It is really quite amazing how appropriate trust can be cultivated during a joint session. Oftentimes this can be accomplished with a statement of regret, committing that your sole goal for the day is entering into a reasonable settlement, a willingness to be creative, or simply outlining that if a party can demonstrate x, y and z, then you will change your BATNA. Such statements during the joint session can have an extremely positive impact in the cultivation of the limited trust necessary to effectuate a satisfactory resolution.
The Bottom Line
The primary takeaway here is that if you are going to do a joint session, please plan in advance with the mediator and do it right.
Throughout the mediation process, counsel and the mediator engage in a form of dance probing risks, weaknesses, uncertainties, and the exploration of the terms of a potential resolution. When the dance is well orchestrated by all the parties, the result is invariably a resolution that maximizes client satisfaction. Even if the dance gets off on the wrong foot and is not particularly well orchestrated, settlements are still achieved but recent studies suggest the satisfaction level of the client will not be optimal and the settlement may not be quite as favorable to the client. More on these studies in a later update – stay tuned.