Chapter 5 A Seat at the Table

• Jurisdiction: United States

Chapter 5 A Seat at the Table

Some lawyers who are experienced in mediation suggest that the opening session be waived, with the parties simply being ushered to their separate caucus rooms. In all but the most exceptional cases, I strongly recommend that some type of a joint opening session be conducted.

One objection often heard from plaintiffs' lawyers is that adverse counsel will just use the session to "beat up" their clients or representatives, angering them and jeopardizing good faith negotiations. If opposing counsel has a reputation for such questionable tactics, his opponent should approach the mediator beforehand to request that adverse counsel be admonished to tone down that part of the presentation. If embarrassing reality checks are part of the day's negotiation strategy, these messages can be delivered far more professionally and effectively by a competent mediator in the privacy of a caucus conference room. We are trained professionals. Do not try this at home. If there is bad blood between the parties, you may suggest that the mediator prevent counsel and their clients from making an opening session presentation—but at least allow the mediator to briefly speak jointly to all present. In this way, the mediator can "sell" both himself and the mediation process to parties that often have neither met him before nor ever previously engaged in the mediation process.

So why am I such a fan of opening sessions? Essentially, an opening session, with literally everyone "at the table," fosters a collaborative spirit to work through the parties' differences toward reaching a consensus. Think of the classic atmosphere of the Last Supper, but hopefully...