Malone & Nelson
What Ever Happened to Openings at Mediation?
Few parties and fewer mediators encourage openings at mediations anymore. Why? Because everyone has experienced them done poorly, and they don’t want to try to wrangle that bucking bronc again.
Nothing can derail a mediation faster than a fire and brimstone jury argument made at the beginning of a negotiation session. At best, the mediation can be salvaged with some time and effort. At worse, it never gets back on track and is DOA. But does that mean that the baby should be thrown out with the bath water?
One of the benefits of a mediation (at least one governed by our rules) is that it provides the parties with a confidential opportunity to speak directly to each other. That simply doesn’t happen in litigation. A joint mediation session is a great time for apologizing, explaining positions, asking and answering questions informally (even those which are irrelevant in a legal proceeding), and humanizing a corporate client. If you’ve seen or experienced one done well, you know what I mean.
Done right, a joint session can “prime the pump” for successful negotiations which follow. Notice I said “joint session” and not “opening.” Traditionally, joint sessions occur at the beginning of the mediation. It is here that the mediator gives his opening – when he reviews the issues, outlines the process, and establishes his guidelines for the mediation. The parties’ openings used to follow, but now mediators typically rush the parties out before they do something stupid (if they pull them together for a joint session to begin with). But the parties opening doesn’t have to be done then. The parties could break into caucuses and see how negotiations go. Then, when appropriate, an “opening” or joint session could prove fruitful.
Regardless of its timing, its best to give the mediator a heads up before launching into a traditional opening statement. Again, everyone has experienced the disaster. Let the mediator help you decide when and how best to speak directly with the other side. Your mediator can work with you to outline the purposes for conducting a joint session and establish some ground rules. Perhaps the parties need to answer some questions about documents produced, such as identifying photographs and what was is depicted in each. It’s easier to review them together than have the mediator shuffle back and forth trying to explain what is shown.