Mediation is a dispute resolution process that involves people who have feelings, goals, and marching orders. It is not simply an emotionless calculator for determining a monetary settlement.
Let me get this off my chest.
Let me explain.
You and I need to talk.
Let me tell you what you did.
I want my day in court.
All of these common sayings are rooted in the same thing. People need to express themselves about things that happen to them as a way to process and get past it.
There recently appears to be a trend developing in construction mediations of avoiding a joint session to start the mediation. Given that you can have a joint session later in the process, for the sake of convenience, I will simply refer to this as the opening session. There are definitely certain circumstances in which an opening session might be very detrimental. There are other circumstances in which an opening session is ill-advised. For example, I recently represented a homebuilder in a pre-suit dispute with unrepresented homebuyers. After talking to the parties the mediator felt that the inequality in representation strongly suggested that an opening session not take place. In multi-party disputes there can be some complexity in mediations. If you represent one of many defendants in a construction defect case, you may want to push back on the owner as to responsibility and damages, but at the same time you may not want to embolden your co-defendants, who you want to contribute heavily to a potential settlement. If there is a good reason to skip or modify an opening session, then the parties and mediator should accommodate that.
However, opening sessions should not be skipped without good reason. It is important for lawyers to keep in mind, especially new lawyers, that what a lawyer knows or remembers about a case (especially one they are preparing to mediate) may be much more advanced or comprehensive than what a representative of a party remembers. The parts your client representative or the other party representative remembers most may not even be the operative facts that might determine a legal outcome. It is important for your client representative to hear the important parts of the story presented again, weaved in with the law. It is also important for the other party’s client representative to hear it as well. While the mediator may have read a mediation memo and performed some preliminary research, they are not going to be experts in the facts and hearing the story from each party can help add nuance that wasn’t apparent in the mediation memo. The most important reason for opening session is to give the parties a chance to have their story told. It is cathartic.
Remember that settlement and mediation are not the same concept. Mediation is a process, and if successful, results in a settlement. The mediation process begins with the decision to mediate, the preparation for mediation, continues with the parties learning about the other parties position, learning more about their own position, developing a rapport with the mediator, engaging in the easy part of settlement discussions where not much is given up or gained, and then finally ends in engaging in the difficult settlement discussion where true compromises and sacrifices are hammered out. Sometimes the last part of the process does not occur until after the formal mediation session. While disputes are resolved through the payment or forgiveness of money, disputes are much more than money. In fact, sometimes money is not even the most important part of a dispute. Disputes are about some combination of failed expectations, embarrassment, frustration, lost trust, feelings of being taken advantage of, feelings of unjustness, anger, and disappointment. Mediation is a dispute resolution process that involves people who have feelings, goals, and marching orders. It is not simply an emotionless calculator for determining a monetary settlement. Do not overlook the human element. Take the time for the opening session. It is not a waste of time.
This article originally ran as a part of the ABA’s Construction Litigation Practice Points.