By: Jerry Palmer, IAM Distinguished Fellow
Posted: June 17, 2015
Mediators have their favorite topics to debate when they get together. An important one is whether or not to have a joint session. I share the prejudice of most mediators that opening statements constructed by counsel to present their positions to the other side (like being in court) are fraught with danger and risk being counterproductive. However, my view is that a joint session is valuable if properly utilized.
Confidentiality and the inability to share important information is another concern of mediators. Cautious counsel frequently admonish the mediator in their written submissions that everything in the statement is confidential and should not be shared with any other party. Usually the mediation statement contains almost nothing that is really confidential or unknown to the other parties. So the mediator obtains information that may be quite valuable but, without specific permission, cannot divulge the information.
A Directed Discussion has many of the advantages of an opening statement without the disadvantages, in that the mediator specifically requests parties to address particular issues and the lawyers can adjust the throttle on the amount of information shared to preserve what is deemed confidential. It also has the advantage that it is being communicated by one side directly to the decision-maker on the other side without the filter or interpretation of third-parties.
The greatest advantage of the Directed Discussion is that the mediator controls the basic flow of information in an organized way which is directed to the issues, facts and law that the mediator thinks might be outcome determinative in the dispute. The mediator, through careful preparation which starts with a request for information from the parties, organizes the discussion format based on the submissions and supplementary materials.
The first step is the request for submissions, asking for relevant materials in a format that is understandable to the mediator. Typically, I request parties to submit a letter of about five pages and the supporting materials for their arguments. I also request that anything truly confidential be set out in a special section, so that I can use the rest in my discussions with the other parties. With respect to appended materials, I request they be highlighted so that I will easily know the important sections of the contract, expert report or depositions. This saves me preparation time and the parties money. I usually read through submissions as they arrive, highlight what I think is important and make marginal notes. From there I prepare my own chronology and compose the issues to be discussed, which becomes the outline I use in the joint session.
After I read the submissions, I call or email each party asking for supplementary materials to address any issues that I see in the other submissions which have not been addressed by that party.
In the joint session I only briefly explain to the parties what mediation is about and its advantages, as counsel usually do a relatively good job of explaining that to their clients. Then I introduce myself, giving my background in litigation and mediation, and emphasize that I was hired to obtain a settlement. I note that when I am in the individual caucuses I will sound like I’m coming from the other room, but I assure them that when I change rooms I will sound like I’m coming from their room. I explain that my job is often to destabilize everybody’s confidence in their case in order to achieve a settlement, and that no one need question my neutrality because all I’m trying to do is reach resolution.
I further explain to parties that when I am in their room most of my remarks will be directed to their counsel for his or her response and in that context their counsel is acting as their “advocate” just as if in a courtroom, and that the decision-makers are the audience for the discussion. When I leave the room the lawyer becomes their “counselor,” rather than advocate, and the subjects we just discussed together should be topics for their further private discussion as to whether any of the concerns I raised are real or whether they have it completely covered.
The Directed Discussion then flows from my outline and I direct questions to one counsel or another. At the end of that process I explain that I’m only the mediator and then give each party an opportunity to raise anything else in the joint session – either by question or comment – that they believe should be communicated to the other side. At that point we begin to caucus.
My experience is that a Directed Discussion helps inform decision-makers who have not been intimately involved with the litigation process, as the process gives them an opportunity to hear unfiltered comment from the other side. The Directed Discussion communicates a lot of information, in an organized format, in a short period of time before bargaining begins. I encourage you to give it a try!