Should we have a Joint Opening Session?

Mark Whittell

The normal procedure in a mediation is for the parties, their legal representatives and the mediator to meet at the beginning of the mediation, at which point the mediator will effect an introduction for all parties and will outline the mediation process. He will encourage the legal representatives or the parties to briefly outline their case (see article on preparing a winning Opening Statement).

Sometimes, and it often depends on the nature of the dispute, it is very difficult for the parties who are at odds, who possibly hate each other and may even be scared of the other, to sit down in a room and meet. Mediation theory is that making the parties meet in an open session, and making the parties listen to the other party’s case is a key tool for the mediation.

Whilst it may be a ‘key tool’, it can also be very daunting for one or both of the parties and because of this may have a negative effect and it can set the mediation back 

An example of this was when I was acting as a lead negotiator and I told the mediator that I really felt that opening statements would set the mediation back. Nonetheless the opening session went ahead and although both parties were warned to respect the other when they were speaking, and to listen and be polite, the opposition called my client a **** and my client’s response was to threaten to kill him. It was not an ideal start!  As you can imagine, it set matters back many hours as I had to persuade my client to retract the murder threat and persuade the mediator that he hadn’t meant it. We did not settle. 

If your client has expressed doubts, and you feel the client is just being over sensitive, explain the position to the mediator and he/she can test the water. An independent third party will probably have more success in explaining the situation than the solicitor – I say this not because of a question of competence but as a solicitor. I have advised my clients until I am blue in the face that the law operates in a certain way, to then take them to counsel who has repeated my advice to them, for the client to meekly to accept their advice!

There are questions of not losing face and not showing any weakness to the other party but in my experience sometimes it can be a real disadvantage to have a joint session. These occasions are very much in the minority but if a client is reluctant both solicitor and mediator should listen to the client. At the end of the day it is their process.