I understand that, particularly in the USA, there is a trend towards dispensing with the opening joint session in a commercial mediation.
The thought is of great concern to me as, except in exceptional circumstances, I believe the session to be indispensable. It is where two (or more) teams who have interpreted the same facts, events and law, in very different ways, can hear the other side’s interpretation.
It is where the parties can tell their story with all the force of their emotion and belief… and listen to the other party’s version and try to understand why it is different.
It is where the demonising balloon is pricked where the person solely responsible for causing all the misfortune throughout a party’s life suddenly becomes human, with feelings and emotion.
It is where there is an opportunity for fractured lines of communication to be repaired and conversations started.
It is where face to face dialogue can take place, with all the tone, expression and body language that is essential when trying to understand another’s perspective.
It is where the mediator can set the rules and build trust with everyone, and be seen to be even-handed, treating everyone the same.
So why would an effective mediator dispense with it?
Practically speaking, it may be the only way forward if the parties (or one of them) refuse to join in. The mediator cannot force a party to participate, although s/he can press the case and explain why the opening session is so important.
If it is not possible then I would still suggest that it is just postponed until later.
Often a party will change their objection once they get into, and start to trust, the process. It certainly is not acceptable for the mediator to be told “we know all about their case so forget the opening session and let’s talk figures”.
My reaction to that is to say “that’s what you have been doing and it hasn’t worked. This is different so trust the process, it does work”.
Another objection may be that people, particularly the lawyers, can be adversarial in what they say in their opening statements, and potentially set the process back.
That is a genuine concern and the mediator should encourage a conciliatory approach, not least because everyone is there, in theory anyway, with the intention of finding a solution to their dispute.
A strident performance may impress the client that their lawyer is fighting their corner, but the effect may make the other side(s) far more cautious in their willingness to co-operate.
If I had a reputation beyond bright shirts/ties/socks it is for extended opening sessions. It is not unusual for my opening session to go on until lunchtime, so two or three hours. Not every time, but certainly the majority.
Indeed, today’s mediation, which is scheduled for two days, started with the usual private meeting with each party but then had an opening session which lasted all day, except for one private session with each party in the late afternoon.
Of course, it needs to be managed well but the benefits are great, especially when there are a lot of people present.
Being together means that they are all hearing the same thing – no-one is giving a filtered version of what has been said or done.
It also means that everyone is engaged in the process and not sitting in their room getting bored and disengaging. And they can contribute when so inclined.
There are a few techniques that help the mediator to manage an extended session. I always have a few questions prepared, arising from my reading of the papers or from what has already been said, that I can ask after each person in each party has made their statement, and the ensuing discussion is ended.
I often use the flipchart to note some points and ask the parties to explain some more about some of them. I might well ask a party, or their advisor, to elaborate on a point of difference that has arisen during discussion.
Of course, all this has to be genuine. I would not prolong an opening session for the sake of it and we would end as soon as it has ceased to be useful.
But I urge any mediator to try it because opening sessions are indispensable.
David Richbell FCIArb is a Civil and Commercial Mediator with over twenty years of experience. Originally from a construction background, he has mediated cases over numerous sectors both in the UK and in several countries overseas. His latest book How to Master Commercial Mediation for mediators at any stage of their career was published in 2015.