Litigation is conflict, but it doesn’t always have to be. That simple statement, in many ways, exemplifies the day-to-day existence of claims professionals and defense attorneys alike.
Litigation can be grueling, tedious, and can cause late nights at the office and long hours behind a computer screen. The statistics—routinely reported and repeated to clients and anyone else who will listen—reveal that 90 to 95 percent of all civil litigated cases are resolved short of trial, most of them through alternative dispute resolution (ADR) mechanisms such as private mediation.
Considering human nature generally skews toward avoiding conflict, it is no wonder that joint mediation sessions that have a mediator, plaintiff, and defense all in one room have become anecdotally rare. This raises the question: Is a joint mediation session worthwhile?
The trends indicate that private mediation (as opposed to judicial settlement conferences) is the most common and productive forum for resolution of civil lawsuits. While mediations may vary across jurisdictions as far as customs and practice—not to mention varying case law—the common thread is the use of an independent third-party mediator who performs shuttle diplomacy.
The mediator is hired to act equally on behalf of all parties, most often taking messages, demands, and offers back and forth between them and objectively addressing the strengths and weaknesses of each party’s case. By separating the parties in different rooms, the mediator is able to navigate the choppy waters of the dispute and hopefully maintain a level of civility and professionalism that is conducive to an ultimate negotiated resolution.
The mediation process has matured as time has passed, and has become something close to a common, everyday routine. With that has come the reduction of the joint session. More often than not, the parties immediately move to their respective rooms and begin taking potshots at each other’s position. The joint session is either abandoned or reduced to a brief meeting at the beginning of the day where the mediator simply covers the ground rules.
An informal polling of claims professionals and attorneys, while not scientific, provides some insight into the current attitude of abandoning joint sessions. When asked about the usefulness of joint sessions, most responded with comments such as “polarizing,” “counterproductive,” and a “waste of time.” As one mediator put it recently, it takes more energy, more preparation, and a lot more cooperation to successfully pull off a joint session. If the parties are not on the same page, then the joint session can take up valuable time that could otherwise be spent negotiating the case. Even worse, it adds time and expense that may be in limited supply.
The joint session may even set a negative tone for the mediation that the parties are unable to overcome. Seattle-based mediator Chris Soelling puts it another way: “You can count on the mediator, but you can’t necessarily count on opposing counsel.” What may start as good intentions can quickly devolve into further polarization. Thus, the default is for attorneys to avoid joint sessions and instead rely upon the mediator to make their cases.
The mediation process is unique, however, in that it is intended to bring opposing parties together in order to find the common ground for settlement. For that to occur, the parties have to act in good faith. If they are committed to doing so, then the joint session can be a very effective tool in reaching resolution and should not be written off.
For those committed to seeking resolution, joint sessions can de-escalate the hostilities that often and naturally develop from our adversarial judicial system. This de-escalation can be as simple as humanizing the defense attorney or claims handler. Similarly, it can help build a rapport among the opposing sides or set the plaintiff at ease. Many plaintiffs simply wish to be heard or have their injuries acknowledged, and they consider this their “day in court.” Many times, the joint session can accomplish that goal.
Other than serving as a platform for being heard, the joint session can provide an opportunity for the defense to get beyond the filter of the other side’s attorney. If done in an honest, direct, and respectful manner, the joint session can be used by the defense to advance the merits of its case or demonstrate the weakness in the plaintiff’s case. This may be the only time, short of a deposition or trial, where the plaintiff is face-to-face with the defense, and where the plaintiff can be told candidly how his case has problems. When the barrier of the computer screen is removed and the plaintiff is able to put a human face and voice to the defense, the plaintiff may be more likely to believe the defense’s position.
It should be noted that the defense’s case on paper is not the same as the one it ultimately tries in front of the jury. It is equally important to recognize that some cases do not lend themselves to an all hands on deck-type of mediation. This is particularly true for claims involving employment discrimination, retaliation, harassment, sexual assault, elder abuse, or child molestation. Such matters create situations that render a face-to-face encounter uncomfortable or simply untenable.
To make a joint session successful, Portland-based mediator Mike Scott emphasizes that the mediator needs to be thoroughly involved before the mediation starts. The mediator needs to know the defense’s purpose in seeking the joint session and establish the parameters up front with the attorneys regarding what is going to be conveyed and how.
As the defense, the more you educate the mediator about your case and the plan for a joint session in advance of the day of mediation, the better your mediator can help you navigate the choppy waters and convey your position for its maximum benefit.
If you intend to use your mediation session as a fact-finding expedition, a joint session is not likely to advance your defense. Truth be told, fact finding should be accomplished through timely investigations and basic discovery efforts prior to mediation. If, however, you are prepared, then a joint session can be an effective tool. Whether or not a joint session is worthwhile comes down to what you hope to accomplish and how much effort you are willing to put in prior to mediation.