Mediation tactics

I just came back from a fascinating luncheon presentation by the Dallas Bar Association's ADR Committee. The luncheon was entitled "Mediation Issues & Tactics From the Plaintiff, Defense, and Mediator Perspectives". While this was a public discussion, I am not going to name the panelists' names or specifically identify their comments.

The panel consisted of an attorney who practiced plaintiff's work, an attorney (and mediator) who practiced defense work, and a full-time mediator. It was surprising to me to see the divergence of views in how to present your case at a mediation with the hottest topic being whether to have an opening joint session.

One of the attorneys listed his top ten items for a mediation. They are, in abbreviated form:

1. Mediate as soon as possible.
2. Always send a packet of information to the mediator. Consider meeting with the mediator before the mediation.
3. Have an opening session and hope that both sides will lay out their case. (This speaker advocated laying your case out because everyone will know the strengths and weaknesses of the cases).
4. Get to realistic offers and counters quickly.
5. Listen to the mediator.
6. Make sure the other side has adequate authority to settle the case.
7. Bring a form of a settlement agreement with you.
8. Talk with the other side prior to the mediation to see if they are serious about settling the case.
9. The mediator needs to work both sides; don't be a mouthpiece merely exchanging offers.
10. Bring someone other than the accused wrong-maker to the mediation--you will need a "clear head" to negotiate (this applies in commercial-type cases).

The other attorney raised two points:

1. Evaluate how much you want to tell the other side in the joint session. You can describe your entire trial strategy in opening session, which this speaker thought was a bad idea.
2. Don't have joint sessions. They are bad because they increase the emotions in the room, it results in finger-pointing, and he stays away from them.

The mediator's points:

1. Joint sessions are critical to the success of the process. Mediation time can be reduced by having a joint session, being emotional is part of the process (but one that attorneys don't like because they are no longer in control), but the neutral facilitator's role is to allow folks to vent and get emotional. Then, they can get realistic.
2. Mediation ought to be the "day in court" for the parties. The mediator sees more and more mediations where the parties don't get to talk and so they don't get satisfaction out of the process. Along these lines, the mediator encouraged parties to provide background information prior to the mediation so the mediator can be prepared.
3. There's too much mediation, in terms of multiple mediations in a case as well as too many half-day mediations. Lawyers have come to see the mediation process as a mechanical process and believe most disputes ought to be resolved in three to four hours. That's just not the case.

An interesting point that was raised is the fairness of the joint session. Is the joint session "fair" when one party reveals its theory of the case and the evidence to support its theory but the other side does not? That's not a fair use of the joint session, which could leave the parties unsatisfied. The counter is that during the mediation the other side's theory and facts will come out--it will be later in the process, but it will come out.

The mediator also promoted the idea of client-to-client meetings early on in the mediation, even before proposals are made. Why go through the hours of agony if the clients (and it is their case, after all) can sit down and resolve the situation themselves quickly?

What do you think? Should we ditch or encourage joint sessions? Should we encourage clients to talk outside the presence of counsel (but with the mediator) early at the mediation?