Tuesday, February 16, 2010
Fear of Joint Session
In both cases where counsel had asked me to keep the parties apart, it turned out that they had little difficulty in talking to each other. Interestingly, I'm not sure we would have reached a settlement in either case if the parties had not remained in the same room for an extended period. In one case, a landlord-tenant dispute, the joint session gave the parties a chance to see each others' human sides. The parties also needed to make that kind of connection so that they could avoid similar disputes in the future. In the other case, a dispute between two contractors, the parties needed to exchange a lot of technical information, which they were able to do directly, and which would have taken more than twice as long, and probably would have been less effective, had they been required to filter their views through the mediator.
The lesson for me was that parties sometimes need to be nudged away from their initial reluctance to remain in joint session. Joint sessions present the fastest and most direct means of exchanging information. They also allow the parties a terrific opportunity to observe how the other side presents their case, and reacts to their side's claims. And they present a real opportunity for potential reconciliation in some cases. Parties should enter into mediation with the expectation that they are going to be sitting in the same room with their adversaries, the same as if they were attending a deposition or a trial. They should expect to break into caucus only when there is a real need to protect the confidentiality of information they may not care to share with the other side, or to conduct a strategy session outside the hearing of the other side. The fear that a mediation will devolve into an unproductive shouting match is overblown, in my opinion, but of course precautions should be taken to protect against negatively-charged joint sessions.
(The photo, which I found on a soccer blog called True Fan, illustrates what sometimes happens in mediation. Both the disputing players are pointing fingers at each other. One of the disputants is trying to confront the other one, but that one is directing all his comments at the referee. And the ref seems to be looking elsewhere for guidance.)