By: Jeff Stern
For the past fifteen years, I have been privileged to be a member of the American College of Civil Trial Mediators (ACCTM), which includes some of the finest mediators, from almost every state, who are involved either exclusively or primarily in the mediation of civil disputes. ACCTM’s annual meeting, from which I recently returned, features wide-ranging conversations about best practices, recent trends in the field, and the like. One of the most interesting aspects of these conversations is the exploration of regional differences, and this year there was a particular focus on the use of an opening session. While almost everyone features a brief session at the outset to describe the process, particularly for the benefit of the parties, there was a stark difference in approach beyond that. Most of the mediators in the eastern part of the country use some version of what has been (at least until recently) the standard practice in Massachusetts—an opportunity for each side to present to the mediator and to the other side a summary of its position, roughly analogous to an opening statement in court. I have learned over the past few years that that practice has been largely abandoned by many (perhaps most) mediators on the west coast, and is no longer uniformly practiced in the east. My own practice has been on the eastern model, perhaps because when I first got into this field, I adopted the techniques I had been taught, and had seen from my career as a lawyer in the trenches. While it is still my “default option,” I no longer do it automatically, and my recent conversation with colleagues across the nation have caused me to delve deeper (and think more consciously) about the pluses and minuses. Ergo: this article.
After hundreds of mediations over twenty-five years, here is my list of what an opening session can offer, in no particular order:
I frequently tell the parties and counsel that successful mediation depends on successful listening, and the opening session presents the best chance to listen to what the case looks like from across the table, unfiltered by the mediator. While it is inevitable that a party in almost any dispute sees and hears arguments from the other side through its own prism, it is still vitally important, I think, to actually hear the words (and perhaps to sense the underlying emotions as well) from the other side of the dispute.
Without trying to sound too mystical about it, I think there is a genuine impact to sitting around a table in one room. The subtext is that everyone there is part of a shared process to achieve the shared goal of finding an acceptable (the word I always use) resolution to the dispute. I do not believe that a truncated opening session, where only the mediator speaks and only about the process, accomplishes the same thing.
As I have noted in the past, the descriptive term “Alternative” in front of “Dispute Resolution” has either disappeared or is in the process of disappearing. Also disappearing is the realistic chance that any particular case we mediate will actually find its way to a jury trial. As a consequence, the mediation presents (for the vast majority of disputes) the only opportunity for a plaintiff to have his or her “day in court.” The emotional need for that day, in my view, is not adequately met without the chance to confront the adverse party, and to tell the story to the other side, either directly or through counsel. As noted below, this advantage carries with it a significant caveat, but it remains for many cases, a key need to be addressed.
The opening session also allows an opportunity for the mediator, particularly in cases of some factual or legal complexity, to demonstrate to the attorneys and the parties that he or she has a grasp of the issues. I do not mean to suggest that this is the mediator’s chance to show off. A key ingredient to a successful mediation is that the parties and counsel, in a very short period of time, come to trust the mediator’s neutrality, but also his or her judgment, and that trust must be grounded on a belief that the mediator grasps the key issues.
A related advantage is that the opening session affords the mediator a chance to identify gaps in his or her knowledge of the case, and to fill in those gaps with input from both sides.
An effective opening statement also give the mediator a chance to model the tone that he or she would like counsel to adopt—an acknowledgement that like all cases, there are real disputes and disagreements, and that truth and justice do not lie with only one side. While a truncated opening session with only the mediator speaking can do some of this, I don’t believe it to be as effective.
Sometimes the opening session allows the mediator to identify ways in which issues might be narrowed, or which issues could be tabled. Put another way, it allows the mediator to identify where the true barriers to settlement might lie, and thus inform how the caucus sessions should be structured, or even to suggest areas in which it might be constructive to re-convene the parties in a joint session.
A very important feature of an opening session is the opportunity for each side to assess the opposition. This includes the competence of opposing counsel, his or her grasp of the case, and his or her effectiveness as an oral advocate. Of at least equal importance is the chance to see and hear what the adverse party looks like and sounds like: will they appear credible to a jury; will they be sympathetic; will they overplay their hand, and the like. No matter how thoroughly a case has been prepared for mediation, and how extensively pre-mediation summaries have been prepared and exchanged, there is no substitute for face to face meetings, and that is one reason I try (with counsel’s permission) to engage the party in the opening session. It is a fundamental maxim of mediation that the parties own the process, and that maxim is undercut, I believe, if they are muzzled or muffled by their counsel. This feature can be particularly critical in personal injury cases, where pre-mediation evaluations may have been made in a distant office, where the adjuster has never seen the injured party, and may have conjured up an impression (which could be positive or negative) that is belied on seeing and hearing the plaintiff in person.
Related to the “day in court” feature noted above, and the ability to confront the other side, the opening also affords the chance in the appropriate case for an apology, either directly or through counsel. This can come in different flavors, from the fairly mundane (“my insurance company sincerely regrets that you were injured...”) to the heart-felt mea culpa, e.g. in a case where liability is not disputed. The topic of apologies is wide- ranging, and beyond the scope of this article, except to say that a bad one (“I apologize if you were offended.”) can be worse than no apology at all.
Turning now to the downsides of the substantive opening session, my list is shorter, but that does not mean that the negative factors should not be determinative, in particular cases:
An overly zealous opening statement can cause the client to become overly enthusiastic about his or her chances of victory at trial, even if the client has been previously counselled that the statement will be putting the best case forward, but that the arguments advanced are really not bullet-proof. That over-enthusiasm can significantly complicate the mediator’s task, by creating a resistance to hearing the mediator raising questions at caucus, even causing the party to question the mediator’s neutrality, if he or she raises arguments advanced by the other side.
An opening statement that is unduly harsh, and outside what should be the spirit of mediation, can be so toxic in its effect on the adverse party as to doom the mediation from the beginning or at least create a need for heavy damage control on the part of the mediator. This is especially likely if the presentation is unnecessarily lengthy, is over-reliant on exhibits and Power Points, or questions the integrity of the other side.
There are some cases where the parties or counsel may quite validly believe that an opening session would simply be a waste of time. This may be true, for example, where the facts are well-known to each side and essentially undisputed, or where the case has been extensively pre-tried and each side genuinely understands the position of the other.
There are situations where it is simply not possible, or unduly uncomfortable or even painful, for either or both parties to be in the presence of the other. An obvious example is where an allegation of sexual harassment is central.
So where do I come down now, in 2017? As indicated at the outset, I still prefer what I view as the standard practice in this part of the country. I believe that the positive features outlined above are important, and not always to a degree that is readily obvious to counsel or to the parties. That said, I now routinely solicit the views of counsel, in pre-mediation phone calls, as to the advisability of an opening session. I deeply respect the fact they have lived with the case far longer, and know it far better than I. I may test or push back on an assertion that an opening session is unnecessary, but I will certainly want to listen to their arguments, and I would not impose it, over a strong objection, especially bi-lateral objections. In short, mediation is not, and never should be, a one-size-fits-all procedure, but for me what has been my usual practice from the beginning of my mediation career still has much to recommend it.