Making the Case for Private Mediation Sessions

Joint mediation sessions are increasingly rare. Possible reasons for this trend include the parties’ impatience, fear of conflict that cements a tone, polarizing presentations, and the idea that listening could signal weakness.

Anyone interested in maintaining mediation as an effective alternative means of dispute resolution outside of the courtroom should consider its ultimate objectives. If mediation is reduced simply to an expedited process of trading numbers through a neutral, what is the purpose of spending the time or the resources for an expert neutral who is trained at facilitating resolution?

Number-trading, without more, can be performed through direct negotiations. However, direct resolutions are less successful, the results may not be optimal, special terms may not be communicated with consistent understanding by all parties, and those communications may require extensive costs and time (letters, calls, return calls, tangential discovery) to convey information that can efficiently be communicated via mediation. Reintroducing joint sessions into the mediation forum, in a non-confrontational manner, can generate optimal resolutions.

One design for joint sessions that can reduce the conflict potential is to have a session between litigants, with carriers observing, but without lawyers. In a joint session without lawyers, parties can be provided with an opportunity to greet each other in a setting controlled by the mediator. The mediator can explain his role as well the role that the participants will have during the mediation. The mediator can help establish an appropriate level of respect between the parties and model effective communication. Such a session provides the mediator with an opportunity to help the participants relax, overcome anxiety, and better understand the mediation process. It gives the mediator the opportunity to earn the parties’ trust at the same time.

In addition, because litigants get an opportunity to observe each other, a joint session provides a human dimension to the mediation process that mere “shuttle diplomacy” does not. Carriers may also be humanized through the introductions, which helps the resolution process. Humanizing the other litigants and breaking the psychological barrier is often the first step in clearing the impasse hurdle.

Once the parties are humanized, negotiation messages during the private mediation sessions can be more clearly heard, objective intent behind an offer can be better understood, and the reasoning of positions can be better absorbed. Joint sessions that involve posturing and debates rather than respectful greetings, explanations of the process, and a focus on the messages rather than emotions can impact the case from dispute to dispute resolution, and attorneys who are gearing up for trial may dilute the potential for mediation to act as a forum for objectively reviewing positions and seeking common ground.

Agreed-upon parameters among the parties and the mediator are key. Mediation is intended to provide litigants with an opportunity to actively participate in solving their disputes with the assistance of a professionally trained neutral. The mediator is retained to facilitate communications between these parties and to encourage problem-solving discussions. It is important that the neutral have the opportunity to reframe the dispute in order to effectuate a resolution. A mediator who demonstrates belief in the process and a successful outcome gains trust. Furthermore, mediators who show they are listening effectively and who can convey positions effectively can set the stage for a productive session and mitigate the impact of issues that may arise later, including behavioral ones.

Accordingly, for the design’s success, it is important to discuss the mediator’s philosophy and approach prior to retention—and the mediation itself—so there is consensus regarding the joint-session elements, time limit, and contingencies should a surprise occur. The parameters should include protections to ensure no privilege is waived, no comments constitute an admission, and that mediation confidentiality remains as robust as legally allowed.

Personality disputes, hidden agendas, and lack of understanding can impede resolution. An effective joint session with the ultimate decision makers can help the mediator identify the primary problems to be solved, determine why they have not been resolved, and provide insights on ways to find common ground. Mediators have learned to observe nuanced behavior and can quickly glean when there is a lack of understanding of a high-exposure risk, when a seemingly minor issue is actually a primary case driver, and when there is a non-party guiding a party’s decisions. Tension reduction and the absence of strong persuasion tactics during an initial meeting can offer the mediator the ability to observe interactions and develop the trust of the parties, which distinguishes mediation from other litigation processes.

There is sufficient opportunity during private sessions to advocate positions without requiring attorneys to attend joint sessions, where strong advocacy may be premature and counterproductive. If a positive tone and framework are set at a joint session, the mediator can then present each position in a way that is better understood by all parties, increasing the odds of success. In addition, a mediator can deliver a message to a party that counsel may not want to deliver to a client, or fully appreciate.

For attorneys, litigation and mediation are commonplace. For their clients, the current situation may be their first exposure to litigation, and mediation may be understood to be a day to “present their case” or “win everything,” rather than a technique for realistic resolution. In the hands of a skilled mediator, a joint session between the parties, without the presence of lawyers, can be very helpful in establishing better communication and a level of trust to help set the stage for a successful mediation. Parties interested in reinvigorating the mediation process should consider having a joint mediation session that takes lawyer advocacy out and leaves that to the private sessions. Perhaps it is time to resume the opening session and return mediation back to a discussion; an opening between litigants, with carriers observing, facilitated by the mediator, without lawyers present.