Mediation was inserted into the litigation process in the early 1990s in part as a result of the inefficient and ineffective manner in which litigated cases were being resolved. Although most litigated cases settled, too often the settlements were being reached at the last minute “on the courthouse steps,” and in terms and conditions that many clients concluded could have been obtained much earlier. One hope for the mediation process was that settlements would occur earlier and in a more “user-friendly” manner.
As the mediation process evolved over the last 25 years, one of the most significant changes is the trend in many jurisdictions, and among many lawyers and mediators, to dispense with the initial joint session. Perhaps because most of today’s litigators did not have experience with the pre-mediation settlement process, some of the fundamental factors and dynamics that make the joint session important in the settlement process are not evident.
In the vast majority of disputes that escalate to litigation (or to a point where litigation is imminent), the gap or difference between the parties’ positions is generally substantial. Prior to the advent of mediation, those gaps or differences would nevertheless eventually be bridged. There were obviously a multitude of reasons that parties changed or modified their positions. Some reasons were particular to the individual dispute, but others were common in most litigated cases.
Trial lawyers experienced in handling cases before the advent of mediation often observed a subtle but significant change in their clients’ position and attitude when the complaint or response was first aired in an open, neutral and often formal environment. The courtroom, the judge, the presence of the other party and other party’s lawyer seemed to have a moderating effect on clients who had previously only discussed the matter — and only heard the matter discussed — in private. (See, i.e., “Judging Judges: The Effect of Courtroom Ceremony on Participant Evaluation of Process Fairness — Related Factors”; Chase, Vol. 24, Yale Journal of Law and the Humanities, Issue 1 (2012)).
Even though the mediation process is closed to the public, it is submitted that the joint session environment replicates some of the same dynamics present in the pre-mediation litigation process. And, like that more formal trial process, the joint session can result in a moderation of the parties’ positions. Indeed, the Indiana Supreme Court held that mediations are, at least for certain purposes, considered to be “in court” proceedings. Koval v Simon Telelect, Inc., 693 N.E.2d 1299 (Ind. 1998).
Another significant reason that cases prior to mediation settled — albeit perhaps at the last minute — was because over the lengthy litigation process, each party learned more about the other side’s position and heard that position discussed and argued by a professional advocate. This dynamic can also be present in a well-conducted joint session in which the decision-makers hear the adversary’s position firsthand, not filtered through the prism of self-interest of the associate counsel, human resources director, vice president or whomever.
The most important, consistent benefit of a joint session is simply that the parties better understand the risks inherent in going to trial. Once they sit across the table from the other side and their counsel, they are in a better position to evaluate the settlement offers that they later receive.
Without a thorough discussion of the case in joint session, the parties and counsel are left with the same information that they had when they started the day. They already knew each other’s basic positions. What they didn’t know was how those positions would stand up under scrutiny. Although the mediator can present this same information in private caucus, it is not as effective as when presented in a carefully conducted joint session.
An obvious caution is appropriate in conclusion. Although a joint session offers value and can assist in facilitating a settlement, it must be conducted cautiously so as not to prejudice a party’s litigation or negotiation position.•
• John R. Van Winkle, of Van Winkle Baten Dispute Resolution, is a former chair of the American Bar Association’s Section of Dispute Resolution and author of West’s Indiana Rules of Dispute Resolution Annotated. The opinions expressed are those of the author.