Initial Meetings

I will meet privately with each party and their lawyer upon their arrival.  This is a short meeting with several purposes:

1. it allows me to introduce myself to the parties without the stress of being in the presence of the other party;
2. it allows a party to raise any initial questions or concerns about the process;
3. we can discuss some of the obstacles to settlement;
4. the parties can raise anything with me that was not raised in their brief;
5. we can talk about ways to make the particular mediation most productive; and
6. I ensure that the mediation agreement is understood and signed by all parties. 

Joint Sessions and Opening Statements

Joint sessions are counter-productive if they are not managed properly.  Unless the mere fact of being in the same room is going to significantly inflame the parties, it is often useful to have an initial joint session to introduce the parties to the mediation process (it saves the time of having to do this multiple times with each party).  

Often, counsel wish to make an “opening statement” on behalf of their client.  I encourage counsel to prepare any opening statement with the purpose of facilitating and encouraging settlement.  An opening statement that is too adversarial could inflame the parties.  Anything that polarises the parties works to delay or even derail any potential settlement. 

Negotiation or “Caucus” Sessions

Invariably, the mediation will evolve into private sessions between the mediator and each side, one after the other. Those private sessions may be very long.  Offers may not be exchanged until late in the game. The mediator will come into the private room in which the lawyer and a party are isolated, and a party must understand the dynamic that will then unfold between the mediator and the party.

The mediator needs objective and independent criteria to take back to the other side: market value, legal precedent, objective analysis of the evidence, scientific judgment, professional standards, etc. 

Where an initial offer is unreasonable, this can certainly be off-putting to the other side. It can set the wrong tone for the mediation and lead to an unproductive mediation session. In fact, where the parties start with unreasonable offers, the mediator must spend a lot of time dealing with the sense of insult and anger felt by one or more of the parties and it can lead to an impasse. Furthermore, if the negotiations go back and forth too many times until a reasonable range of negotiation is finally reached, this can be very frustrating and demoralizing for the litigants.

I encourage parties to always be aware of their BATNA (Best Alternative To a Negotiated Agreement).

Finally, it is my practice that anything the parties tell me in caucus is considered confidential and will not be disclosed to the other side unless the party specifically gives me consent to do so.