For this edition, it seemed appropriate to write about two things that can spook mediation participants, namely the specters of early mediation and joint sessions.
In litigated cases, there is often a fear of scheduling a mediation before all necessary information has been gathered. Practically, this often means that mediation occurs on the "eve of trial", at or near a deadline imposed by the court.
It is true that preparation is key, and that effective preparation requires the parties and their attorneys to be well informed about their options. However, research shows that positions become entrenched as time passes. This is especially true when individuals– including parties, attorneys, claims professionals, and other stakeholders – are required to repeat and justify their perspectives as the case progresses through depositions, written discovery, and motions practice.
Parties are more likely to be receptive to options for resolution before they spend time and money shaping and defending their positions.
And if an early mediation does not resolve the case, it may yield other benefits, such as providing clarity about strengths and weaknesses of the case, formulating next steps, and setting the stage for further productive negotiations.
One of the principal foundations of mediation is party self-determination. As such, I never require joint sessions, because participants have serious concerns about the potential harm they may cause.
However, I conduct separate pre-mediation calls with each party, and always include a discussion of whether the parties would consider a joint conversation at some point during the mediation. Such a joint conversation may include all participants or some subset of participants, such as attorneys or experts.
While I am more than willing to shuttle messages and questions between rooms, a facilitated direct conversation can often save significant time and effort. Consider the opportunity inherent in humanizing yourself, acknowledging the other, and observing body language and tone of voice in a less formal setting than a deposition or a courtroom.
Much information can be gained from such interactions, if they are properly managed by a trusted mediator.
Not so Spooky After All
Don't be spooked by the concept of early mediation or the thought of joint sessions. While neither is appropriate in all cases, both can be powerful tools if used judiciously.