By Dan Brookhart
As seen in RESOLUTION, a newsletter of the PBA Alternative Dispute Resolution Committee – Fall 2012
One of the distinguishing hallmarks of mediation, as compared to other forms of dispute resolution, is the opportunity for each party to address the other party directly and give their perspective on the case. This process, typically referred to as a joint session, has long been a staple of a litigated case mediation. The joint session affords each party (or more commonly their attorney) the opportunity to present the merits of their case, ideally in a manner that helps to facilitate eventual settlement.
However, there remain differing schools of thought on the efficacy of a joint session in a mediation. A joint session can easily spin out of control and, instead of advancing resolution of the case, can drive the parties further apart. The decision to have the parties engage in a joint session at the outset should be given careful consideration after examining the dynamics of the individual case.
What follows is a look at the potential benefits and possible perils of a joint session and some suggestions on traversing the joint session minefield each mediator must negotiate in the dispute resolution process.
The Potential Benefits of a Joint Session
The dual purpose of an initial joint session is to allow each party the opportunity to highlight the merits of their case or defense while also listening to another perspective on the dispute. Executed well, the joint session combines subtle advocacy and reflective listening. The content of a joint session can range from a short statement to an elaborate Power Point presentation.
The joint session is often the only opportunity for a party to speak about their case directly to the opposing party. To be able to express how their life, business, etc. have been impacted by the facts giving rise to the dispute can be quite cathartic and set the stage for resolution. At the heart of every case is a story needing to be told. An effective joint session allows that story to be expressed in a safe, structured and confidential environment.
On the other side of the joint session coin, is the opportunity to engage in some reflective listening. People in litigation tend to see things perfectly from their own perspective. By really listening to another perspective on the litigated events reveals that indeed there are at least two sides to every story. Depending on the level of disclosure exhibited in the presentation, the “listening” party may get a preview of what they are likely to encounter at trial. A receptive listening ear can raise the potential for settlement and resolution. Of course, all of this presupposes a party capable of engaging in reflective listening in a potentially emotionally charged and tense situation.
Thirdly, a joint session allows for a more informed evaluation of the overall case. For an opposing party or principal to spend time with the other party, listening and observing, can be very beneficial in making case resolution decisions. In many respects, mediation is an assisted conversation about making informed decisions. To have the parties interact in the same room, in a carefully structured environment, enhances the quality of the decision making.
Peril of a Joint Session
The chief peril of a joint session is that it denigrates into an adversarial exercise that drives a stake in the heart of settlement. The joint session, and indeed the entire mediation, can be hijacked by a party/attorney intent on demonstrating how they are going to crush the opposing party at trial. Subtle and effective advocacy is a necessary element to an effective joint session as it is important for the opposing party to understand what they are up against. However, over the top chest-thumping advocacy will often do nothing more than drive the opposing party away from the negotiating table.
It can be difficult for parties and counsel who have been engaged in the adversarial process of civil litigation, complete with the required tenet of zealous advocacy, to suddenly transform to a conciliatory process designed to find common ground. The wrong word or gesture at the wrong time can cause an otherwise well-intended joint session to spiral out of control.
Negotiating the Mine Field
It can be a delicate journey from the mediator opening to the private caucus as the parties cross the minefield of the joint session. The first inquiry should be whether to hold a joint session. This question can often be resolved by simple advance preparation. Know the nature of the case: Does the underlying case have the potential to be emotionally charged or is it a dispute involving an arm’s-length transaction? Speak to all counsel about the dynamics of the case. Ask for counsel’s opinion on whether a joint session is advisable. Counsel has lived with the case for a far longer period of time and can be helpful in determining the wisdom of a joint session. Know the attorneys: Seek to understand their approach to a joint session and their overall litigation temperament.
If a decision is made to commence with a joint session, it is important for the mediator to set a positive tone in the opening remarks. The mediator’s opening remarks can be critical to success. It is in this moment that the mediator begins to plant the seeds of resolution. The overarching goal of the mediator’s opening is to create a positive environment of optimism, safety, conciliation and mutual respect.
During the opening remarks prior to the joint session, it is important for the mediator to protect the process. Explain the purpose of the joint session; to respectfully advance the merits of the case while listening to another perspective. Encourage the parties that mediation provides an opportunity to remove the litigation boxing gloves for a day and work jointly toward a resolution of the case.
A joint session can hold much promise for settlement of a case including the opportunity to be heard and the potential for hearing a different perspective. However, the joint session can unintentionally sabotage a mediation if allowed to proceed in an overly adversarial environment with unchecked emotion.
The decision to engage in a joint session is made in the prism of inquiring whether it will advance the cause of resolution and settlement (just like most decisions in the context of mediation!) If the decision is made to engage in joint session, the potential for maximizing the promise and purpose of a joint session can be achieved by engaging in careful preparation, setting the tone in opening remarks and protecting the overall process.
Dan Brookhart, of Brookhart Law & Mediation, is an experienced civil trial attorney who provides full-time mediation and arbitration services in various areas of civil litigation including personal injury, business and commercial litigation, employment matters and construction disputes. He may be reached at 717-459-3948 or Dan@BrookhartMediation.com.