The Importance of Joint Sessions
By Tim Corcoran, Karen Feld (Contributing Editor)
“We don’t want a joint session, we have already taken the other party’s deposition.” When a mediator hears that from a lawyer or the claims representative, it is important to remind them that the purpose of joint session is not necessarily for them, but for the other side to have an opportunity to express what is really important and often this includes an opportunity to “vent” in a controlled environment. Mediation is a process; not a single event. We engage in the mediation process in order to help our client resolve a conflict. Since every conflict is different, there isn’t a cookie cutter approach applicable to every mediation. A joint session can be crucial to a successful mediation. It provides an opportunity to establish a foundation for negotiation.
The dispute involves the parties and the lawyers are brought into the fray as counselors and advocates and sometimes as trial lawyers. The client must always remain the number one priority and the lawyer should never lose focus that their existence is to serve the clients’ best interests. All too often the attorneys engage in litigation activity because, for some lawyers that is their life --- that’s what they’ve been trained to do, that’s what they know that that’s what they do. Unfortunately, the client becomes a vehicle for the attorney to do what the attorney had always done-fight.
An attorney should stop and examine each and every case and ask what can be done to resolve the conflict. They should take the time and find out what the client really wants. Not every case should be designed with a focus of going to trial. It is very important for the attorney to find out what the client really wants. What is really driving this claim for the client? Once the client’s real interests are determined it is easier to design the most efficient and least expensive process to resolve the conflict. Sometimes that process includes mediation. It is important for the parties to know how a successful mediation is conducted.
Once the parties have decided to come to the bargaining table, have scheduled the mediation and have arrived at the mediator’s office for the negotiation they are ready to get started. A successful mediator will have read the briefs or the mediation statements prepared by the attorneys and formulated an idea as to how the mediation should proceed. As a general rule, the parties are divided and sent to separate conference rooms. A good mediator will then make contact with each and every room over the next half hour or so.
Generally, the mediator will meet with the plaintiff and her attorney, talk to them briefly about the confidentiality and the role of the mediator. Now the communication process has begun and they are given an opportunity to disclose what they are looking for in this process. This is a time for the mediator to create a rapport and trust and gather information to help design a process for success. During these individual caucus sessions the parties and the attorneys should be reminded that this is a non-aggressive and non-argumentative process. Attorneys should leave their armor in the courtyard because this is a collaborative effort not a competition.
While still in caucus with the plaintiff and her lawyer it is imperative to find out what is important to the client and what’s important to the lawyer. A mediator should ask questions to stimulate their thinking on ways to resolve some of these problems. There are always unanswered questions for each of the caucus rooms. A skilled mediator will ascertain the interests and concerns of each side and present it to the other side in an open and non-competitive manner. These pre-sessions are integral to a successful joint session. An effective joint session cannot succeed without these pre-joint session caucuses. Without the necessary preparation, the attorneys and clients would be thrust into a joint session harboring feelings of fear, chaos, anxiety and undue stress, none of which are conducive to cooperative communication.
When the mediator brings everybody together into a larger conference room for the joint session, he will already know what is important to each of the sides and will help guide the discussion and the exchange of information in a collaborative, non-aggressive, non-argumentative discussion.
“Venting” may be an important part of the joint session. This is usually an emotion presentation by a party or her attorney which can reflect frustration, anger, hatred, fear, angst, or sorrow. The mediator will have already learned about the issues and will have prepared everyone for the presentation. Whether it is a wrongful death case, and employment case, civil rights violation, sexual abuse or any other emotional situation this portion of the joint session can be extremely successful if properly designed.
Prior to the joint session, the mediator should admonish the lawyers no to go in pounding their chests and telling the world how great they are or how many trials they have won, and how jury will absolutely rule in their favor and so on. If an attorney wants to communicate that information to the other side, the mediator should always take that information from that particular attorney and share it in a non-aggressive way. (Although it is rarely necessary for an attorney to try to impress the other side with how great they are, some attorneys do insist on having that information relayed to the other side). Aggressive posturing should never be done during the joint session since that type of conduct will derail the success that has already been established.
Some mediators have adopted a Native American tradition known as the Talking Stick during joint session. The Talking Stick custom is that the person who is speaking at that moment has physical possession of the Talking Stick and during that time no one else is permitted to speak. When that person has finished with what they have to say, they will pass the talking stick to someone else. The person who accepts the Talking Stick is required to repeat everything that the first person stated and is then free to articulate their own point and counterpoint. This process ensures that all parties are actively listening to each other. Lawyers loathe repeating the other side’s position so sometimes the second step is amended so the parties can say whatever they want to say. Simply by telling the story, the participants in the mediation process will actively listen to everything that is said, probably out of fear of having to potentially repeat what someone else stated. Whatever the reason, it works. People love to engage in the process. It puts all of the participants on the same level as they are actively engaged in this collaborative effort to resolve the conflict.
After everyone has spoken that wished to speak, everyone sort of looks at each other and they realize that everything that needed to be said was said. You have now laid a foundation for a positive negotiation and just completed a successful joint session.
Tim Corcoran is a Neutral with RAMS. He is a Distinguished Fellow of the International Academy of Mediators, a Fellow with the American College of Civil Trial Mediators and serves on the California State Bar Committee for Alternative Dispute Resolution.
Karen Feld is a partner with Lewis, Brisbois, Bisgaard & Smith, LLP and also represents public entities in litigation, transactional and municipal law. She is also the Vice President of the Inland Empire Legal Association of Women and on the Board of Directors for the San Bernardino City Library Foundation. Ms. Feld was named one of California Top Women Lawyers in 2011 and a California Super Lawyer in 2012.