5 Reasons Not To Skip The Opening Joint Session

5 Reasons Not To Skip The Opening Joint Session

There are two ways to begin a mediation session: with an opening joint session and without one. Over the years, the once-prevailing approach to begin with a joint session seems to have lost its appeal. Often a joint session is viewed as unnecessary because the parties already know each other’s positions, or is considered not to be a good use of time, or there’s a concern meeting jointly could hinder the negotiations.

While all of these may be true in any particular case, most would agree that it is rare for one approach to be right in all circumstances. This article is not intended to debate which approach is better in any particular case. Instead it will simply highlight five ways in which an opening joint session can improve the mediation process. In other words, below are five possible reasons to consider for not skipping it.

Helps the mediator help the parties by establishing her role and authority as an impartial neutral

Every mediator opens a mediation with a few words of encouragement and, perhaps, some housekeeping about what to expect process-wise. While mediators can provide this information to each party separately, there are benefits to talking with all of parties at the same time.

When everyone hears the same information in the same tone of voice in the same order at the same time, everyone sees the mediator interacting with everyone else neutrally. By openly talking with all of the parties and their lawyers together, the parties are able to see the mediator as someone they can trust as a neutral collaborator. And for the mediator, it’s her chance to deliver the impression that this negotiation is not going to be like any other and, thus, establish her role in guiding the process.

In a world where first impressions matter, the mediator’s opening interactions with the parties set the stage for what follows. A joint session is an opportunity for the selected mediator to reassure all of the parties that their time in mediation is being well-spent, whether or not an agreement is reached. 

Reveals who the decision-makers are “in the other room”  

One of the most important factors in mediating a dispute is knowing that the right decision-makers are available and engaged in the process. Dwight Golann, in his book “Sharing A Mediator’s Power: Effective Advocacy in Settlement,” suggests that “[h]aving capable decisions makers is probably even more important than obtaining the best possible neutral.” In those instances in which a person important to the success of the negotiation is not likely to participate, Golann recommends asking the mediator to secure her participation.

During the joint session all of the decision-makers and their counsel actually see each other before the negotiation begins. A lot can be learned about someone simply by being in their presence. Indeed, one of the first rules of persuasion is to  “know your audience,” and one way to do that is to meet with it.

Affords an opportunity to directly persuade through storytelling

“If you need to make an argument about an issue about which you feel very strongly, don’t use rhetoric. Tell a story instead,” says John Baldoni, in a 2011 Harvard Business Review article Using Stories to Persuade.

As lawyers, we are trained to use logos (argument by logic) to persuade dispassionate audiences, like judges. But, in mediation, there are no judges and the audience may not be dispassionate. The goal in mediation is not to win over your opponent, it is to win-over your opponent. After months (sometimes years) of competitive legal jousting, for at least one day, the parties confidentially discuss what common ground, if any, there may be to end their fight. With this goal in mind, logos alone may not be the most effective means of persuasion.

In his book Thank You For Arguing, Jay Heinrichs explains how logos and pathos (argument by emotion) combined help to win-over an audience with greater ease. Together, logos and pathos appeal to both the brain and the heart of a person, respectively. Heinrich explains that “[w]hile our brain tries to sort the facts … our heart makes us want to do something about” them. 

In mediation, the joint session presents an opportunity for disputants to use storytelling – logos and pathos – to start the negotiation. Because stories are persuasive tools, the idea is not to reduce the level of advocacy Instead, a well-told story expresses a less combative approach to the day’s agenda while conveying a contrasting point of view. It’s an opportunity to convey – directly and persuasively – to an attentive audience (the decision-makers and the mediator) a very valuable message” either: ‘This is not going to be a cake-walk for anybody‘” or positional weaknesses that reveal “just how outgunned” a party is.

Having worked closely with their own counsel in preparing for mediation, the decision-makers come to mediation knowing their theory of the case, familiar with the other side’s theory, and armed with their counsel’s opinions as to the strengths and weaknesses of the competing positions. But they may not have heard the other side’s story told the way the other side’s lawyer will tell it. In other words, they may not have heard the story in the same way they will hear it when spoken from a new voice, and perhaps told more – or even – less persuasively.

If there is a concern that the other side might use a joint session to grandstand, instead of persuade, it is helpful to prepare the parties ahead of the mediation session. Talk with them about how to interpret such behavior and remind them that they can control only their side of the negotiation. Coach them on the importance of not reacting openly or being offended. Instead, prepare them to listen closely and accept the presentation as simply another piece of information. The more information the parties have about who is “in the other room” during a mediation, the better able they are to assess responses, options, and offers in the subsequent negotiations.

Reassures the parties by serving as a substitute for “their day in court”

“Mediation is not a court, but the process can give parties a better experience of being heard than a trial,” according to Golann.

Even though mediations are less formal than trial, a joint session makes the process feel a little more formal. It allows the parties to see and hear their lawyers advocate for them, and the other side’s lawyer represent the opposing view, in front of a neutral third-party – the mediator. Although a mediator makes no decisions, by experiencing this kind of advocacy parties are assured that they are being well-represented by counsel and heard by an impartial stranger. With that assurance, the parties are in a position to spend the day discussing ways to control the future, even if it is still hard to put the past in the rearview mirror.

Opens direct lines of communication between the parties

Once a conflict escalates to a point where litigation looms, communication between the parties often starts to deteriorate or even evaporate. As part of a sound litigation strategy, months (even years) can pass during which a party has relied solely on counsel to speak for them, creating distance between the underlying stakeholders in the dispute.

The confidentiality of mediation presents a unique opportunity for parties to share directly with each other. For individuals, it is an opportunity to talk about how the conflict has affected his/her life, business, and relationships. For businesses, it may be an opportunity to signal that there are more ways than one to resolve the conflict and the benefits to keeping an open-mind about the negotiation ahead.

In those cases in which a party wishes to speak, it can be impactful. In certain cases, it can be the reason why a settlement is reached.” 

Felicia Harris Hoss

is an attorney-mediator, arbitrator, and early dispute resolution (EDR) neutral, with more than 20 years of legal experience. Through the years, Felicia has helped parties resolve disputes both inside and outside of the courtroom in a wide range of industries involving a broad spectrum of claims. Felicia is available to assist parties and their counsel through online, hybrid, and in-person mediations, arbitrations, and EDR processes.

The Role of Ambivalence in Mediation

The Role of Ambivalence in Mediation

“Your ‘if’ is the only peacemaker; much virtue in ‘if’.” ~Shakespeare (As You Like It)

I recently listened to an episode of the Human Brain podcast entitled “The Benefits of Mixed Emotions” in which Shankar Vedantam talked with Psychologist Naomi Rothman about how feelings of ambivalence help negotiators reach better decisions. It made me think about how the seemingly paradoxical phrases “it depends” and “what if” relate to dispute resolution via litigation and mediation, or courtroom and conference room, decision-making.

The phrases represent a dichotomy between the decision-making prospects inherent in litigated versus mediated dispute resolution processes. “It depends” describes what can happen in a courtroom, while “what if” describes what can happen in a conference room. Interestingly, however, Rothman’s research seems to indicate that the uncertainty of an “it depends” outcome might actually improve outcomes negotiated through the lens of “what if” thinking.

Rothman’s studies indicate that having mixed feelings – aka ambivalence – in the decision-making process can help a person make better decisions. Feeling emotional ambivalence, she says, makes a person more “cognitively flexible” because the mind is processing a situation that feels complicated, which can be uncomfortable. The discomfort slows down the decision-making process, stimulates a desire for more information, tampers impulsive reactions, and inspires better outcomes. Having ambivalence, it seems, helps to prioritize accuracy over decisiveness, which makes a person more open and receptive to third-party advice, reduces emotionally triggered cognitive bias, and leads to more accurate thinking.  

Mediation’s Place in Decision-Making

As a mediator, I can’t help but think about Rothman’s research in the context of negotiations between litigants. Experienced litigators often exchange settlement offers before engaging in formal mediation without much success and begin the mediation process expressing doubt about the prospects of a resolution. Often, however, even those mediations end in a negotiated settlement. But, why?

Perhaps Rothman’s studies offer an explanation. In the podcast, she mentions two variables that impact how difficult decisions can be made better. The first is the environment. The second is the presence of an ambivalent negotiator.  

The environment. Rothman says the first step to taking advantage of ambivalence in negotiations is establishing a cooperative environment. This first step may be difficult to replicate between parties and their advocates outside of mediation. One can hardly imagine a more highly competitive environment than litigation, or more focused personalities than litigators. Indeed, ambivalence is not a trait associated with zealous courtroom advocates, where disputing parties ask strangers to choose between bilateral options to decide who wins and who loses. Nor are litigants generally comfortable showing ambivalence to an adversary after months (sometimes years) of time and resources have been expended in fighting.

In litigation, where the prospect of trial and waiver arguments are present, Rothman’s advice to be strategic about showing ambivalence resonates. Indeed, as Rothman’s studies reveal, a person who shares ambivalence in a highly competitive environment – like litigation – risks being taken advantage of.

But, even during litigation there is at least one day in which ambivalence is seen less as a sign of weakness, and instead as a sign of a good faith negotiator – the day of mediation. During a mediation session, parties and their counsel often appear in a neutral location (or online) and take a figurative time-out from fighting. To encourage candor and objective reality-checking, the Texas Legislature has adopted rules to preclude the use of what happens in mediation against a party. Viewed from this perspective, Rothman’s research suggests mediation as an optimal environment through which the benefits of ambivalence can become possible for negotiations between litigating parties. 

Ambivalent negotiator. Rothman says her studies show that an ambivalent person in a negotiation can impact how people around them process information and think. Instead of a bilateral approach to winning and losing, she says that a negotiator who demonstrates an interest in winning, but not at the expense of another, invites a willingness by others to consider more information, inspiring a collective willingness to search for a better outcome for all.

While Rothman’s studies suggest the kind of ambivalence found in the actual decision-makers themselves, in the competitive arena of litigation, where stakes can be high, an ambivalent mediator can set the stage for productive negotiations. Indeed, mediators trained in negotiation strategies and litigation tactics often intuitively express ambivalence, thereby offering a level of trust and rapport that is hard to replicate between disputing parties and capable litigators, whose duty and training inspire zealous advocacy.

In sum, what Rothman discusses in the podcast proffers plausible insight as to why mediated negotiations can be more successful than non-mediated negotiations between entrenched litigants. Perhaps one reason mediation works is because it combines a new environment and ambivalent negotiator with litigants facing difficult options. On the one hand, the parties know that resolution depends on the prospects of who a judge or jury believes. But on the other, they know that mediation provides a chance to control how the dispute resolves if a settlement can be reached. 

Felicia Harris Hoss

is an attorney-mediator, arbitrator, and early dispute resolution (EDR) neutral, with more than 20 years of legal experience. Through the years, Felicia has helped parties resolve disputes both inside and outside of the courtroom in a wide range of industries involving a broad spectrum of claims. Felicia is available to assist parties and their counsel through online, hybrid, and in-person mediations, arbitrations, and EDR processes.

EDR’s Streamlined Information Exchange Promotes Informed Decisions

EDR's Streamlined Information Exchange Promotes Informed Decisions

The Early Dispute Resolution (“EDR”) protocols appreciate the potential for a ying-yang relationship between the value of discovery and its costs. As a result, the protocols seek to balance the competing interests of time and money with the value of having control, certainty, and efficiency over dispute resolution decisions. All the while, the protocols are drafted to foster and promote informed decisions.

For parties who understand and appreciate that full-blown discovery in litigation is imperfect, time-consuming, and expensive, EDR can be an appealing option to consider. In part, because it’s designed to help parties make informed choices within a structured and efficient mediated process, which allows them to control how and when their problem is solved.

One typically thinks of informed decisions as those that are supported by facts and information. How much information is needed to make an informed decision may be subject to debate in any given situation. But there can be little disagreement that business owners and executives routinely make and control important decisions based on limited information, within limited time periods, and out of the public’s view. To those parties, through EDR’s streamlined information exchange protocol, the decision-making process may look-and-feel similar to many other business decisions.

Parties engaged in EDR agree either to (a) forego the expense of discovery or (b) participate in a streamlined, focused information exchange process facilitated with the EDR mediator. As part of a negotiation process, as the name implies, EDR mediations occur either before a lawsuit or arbitration proceeding is filed or shortly thereafter. From start to finish, an EDR mediation generally takes place over a 30- to 90-day period.

“Discovery” within the EDR process, while designed to be meaningful and relevant, is different than discovery in full blown litigation. It’s more of an information-exchange which is not intended to “leave no stone unturned,” but rather to streamline the “discovery process” to focus on key information necessary to make informed decisions concerning possible paths to resolution. If appropriate and necessary, the information exchange may include witness interviews and/or short depositions (either on or off-the-record), in addition to streamlined document exchanges and interrogatories. Through this process the goal is to help the parties acquire “sufficient information” to inform their settlement negotiations.

“Sufficient information” provides a level of understanding of the key facts and legal issues from which an informed decision can be made about a dispute’s expected monetary value (EMV). A dispute’s EMV is a “forecast of estimated possible case outcomes discounted by the predicted likelihood of their occurring.” Once the parties have considered the information provided, they should be in a position to negotiate a settlement either informally through phone calls, meetings, and/or emails or may request a formal mediated negotiation session with the EDR mediator. 

Through the formal EDR process, the mediator’s focus and goal is to help the parties efficiently and effectively gather and exchange the information each needs to reasonably assess the conflict and it’s risks in order to make an “informed judgment” about whether to resolve the dispute in its early stages and, if so, on what terms (e.g., for what amount). 

In short, EDR’s systematic approach to information gathering offers parties an approach to solving a legal problem in a manner and with a means that, arguably, looks-and-feels more like the process business owners and executives implore in solving business problems and less like litigation.  

If you are interested in learning more about EDR or want to consider using it in your effort to resolve a dispute, Felicia has been trained by the EDR Institute and is available to assist.

Felicia Harris Hoss

is an attorney-mediator, arbitrator, and early dispute resolution (EDR) neutral, with more than 20 years of legal experience. Through the years, Felicia has helped parties resolve disputes both inside and outside of the courtroom in a wide range of industries involving a broad spectrum of claims. Felicia is available to assist parties and their counsel through online, hybrid, and in-person mediations, arbitrations, and EDR processes.

Early Dispute Resolution: An Overview

Early Dispute Resolution: An Overview

Early dispute resolution (EDR) is a relatively new dispute resolution strategy. From the outset, it is acknowledged that EDR is not appropriate in all cases. But, in those cases in which it can be utilized effectively, it offers parties a uniquely different – cost-effective and efficient – alternative dispute resolution strategy.

EDR is designed to enable the parties and their lawyers to meaningfully and insightfully evaluate the value of a dispute without the necessity of going through the process of full-blown litigation. Ideally, it is a process engineered to guide the parties to an outcome that theoretically is within a reasonable range of values upon which a settlement would be reached if a lawsuit followed a traditional timeline.

From the outset, the goal of EDR is for each party to have “Sufficient Knowledge”, which is defined “as enough information to understand the merits of each side’s position and leverage, and to make an informed judgment as to the value of each side’s case.”

The key to EDR being effective is the agreement, trust, and candor between the parties and their respective counsel. When parties and their counsel participate in EDR, they are aided by a neutral who guides them through a four-step process aimed to help them resolve the conflict in as little as 30 days.

Here’s how it is designed to work:

Step One: Initial Dispute Assessment

In this first step, the parties and their lawyers begin gathering information from their side (e.g., employees), determining who the key witnesses are likely to be, and identifying the core claims and defenses in the dispute. Additionally, the parties determine what they don’t know and what, if anything, they need to know to meaningfully engage in the EDR process. Working with the neutral, the parties will not “go on a fishing expedition”; but, rather, will endeavor to identify only that information needed to understand the merits of each side’s case and leverage.

Step Two: Information Exchange

In this phase, the parties exchange the information gathered during Step One and request information from the other side based upon the assessment of what is needed to obtain Sufficient Knowledge. Parties are ethically committed to produce the information reasonably requested from the other side without regard to whether it is deemed helpful or hurtful to the case. If a party refuses, the attorney is obligated to end the EDR process.

Recognizing that trust can be a factor, the EDR Protocols available on the EDR Institute website (www.edrinstitute.org) allow the parties to ask each other to declare in writing that a “Compliant Response” has been provided during the Information Exchange. A “Compliant Response” is one in which (i) the client has made a reasonably diligent, good faith search for information and documents, and produced the reasonably responsive information and documents; (ii) the client has not narrowly construed requests for information or documents to withhold material information or documents; and (iii) party witnesses, or witnesses under the party’s control have made reasonably responsive and accurate answers to questions.

 

Step Three: Objective Dispute Valuation

If both sides have ethically engaged in Steps One and Two they each should have Sufficient Knowledge in this phase. It should now be possible to establish a risk-analysis valuation for the dispute utilizing defined variables.

In this phase, for most disputes, each party should be able to ask and answer the following six questions (although adjustments may need to be made for different causes of action and complex matters):

  • How much does each side expect to spend on attorneys’ fees and expenses to take the case through trial?
  • What would be the best and worst outcome for each side at trial?
  • Recognizing that the worst and best outcomes simply set outer limits, what is the reasonably likely range of damages from winning or losing (high, middle, low) on the core/material claims/counterclaims in the dispute, expressed in percentages?
  • Given the likely range of damages as to each material claim or defense, what is the likelihood of prevailing as to each number in the range?
  • Forecasting the estimated possible case outcomes, how should they be discounted by the predicted likelihood of their occurring?
  • What is the leverage factors apart from legal considerations in the case?

Each party should be able to answer these questions in a written report to be used as part of its negotiation and settlement strategy, and be willing to provide a copy of the report to the other side and to the neutral. This allows each party to assess the other’s analysis and allows the neutral to know how each party is viewing the case. From this information, the parties are in a position to negotiate.

Step Four: Final Resolution

In this phase, the parties negotiate – either directly with each other or with the assistance of the neutral – to try to reach a final resolution. If informal talks do not successfully resolve the conflict, a formal mediation may be conducted at this time. Ideally, substantive bargaining will begin much earlier in the formal mediation process which should result in a smaller time commitment.

If a settlement is not reached, the parties may still litigate.

A Note About Legal Fees

Alternative fee arrangements are able to create incentives for lawyers who achieve favorable results for their clients in a shorter period of time. For example, in “Planned Early Dispute Resolution User Guide” published by the American Bar Association the following was offered as one way to adjust a legal fee arrangement to promote early resolution:

“A fee arrangement for a party interested in resolving a matter promptly could provide bonuses for resolving the matter (meeting designated goals) within specified periods. For example, the lawyers might receive a 15% bonus if the matter is resolved in 90 days, a 10% bonus if resolved within 180 days, and a 5% bonus if resolved within 270 days.”

As zealous advocates, lawyers strive to obtain the best possible outcome for their clients. When lawyers are successful in obtaining such an outcome in a way that reduces the client’s overall financial investment, it is reasonable to encourage appropriate incentivized compensation.

If you are interested in learning more about EDR or want to consider using it in your effort to resolve a dispute, Felicia has been trained by the EDR Institute and is available to assist.

Felicia Harris Hoss

is an attorney-mediator, arbitrator, and early dispute resolution (EDR) neutral, with more than 20 years of legal experience. Through the years, Felicia has helped parties resolve disputes both inside and outside of the courtroom in a wide range of industries involving a broad spectrum of claims. Felicia is available to assist parties and their counsel through online, hybrid, and in-person mediations, arbitrations, and EDR processes.