Civil Negotiation and Mediation by Nancy Hudgins
Whether you know in advance there will be a joint session or not, preparing for one just makes good sense. The mediation process is flexible. Joint sessions might take place initially, episodically, or near the end of a mediation. As part of your mediation preparation, consider strategizing for the joint session. It’s a mediation skill you’ll want to acquire.
Early in my mediation practice, I met a lawyer at a social function and we started talking about mediation. He said, in horror, “You don’t do those joint sessions, do you? I hate them.” I’ve thought about this for a long time, and the best answer I have is that this lawyer had never been educated as to what can be accomplished at a joint session and probably had no negotiation training, and therefore, he was uncomfortable being in a joint session.
I see joint sessions as opportunity. This is the only time during the pendency of a lawsuit that you get to talk directly to the other side in a non-adversarial setting. It is also the only time that you get to hear directly from the other side. Take advantage of it! This is a mediation skill as opposed to a litigation skill.
I’m a proponent of listening. As an advocate, listening can be a condition precedent to persuasion. Stephen Covey has advocated this for years: “First seek to understand; then to be understood.” So consider listening first, asking curious questions and keeping an open mind. The other side may reveal the solution for a settlement.
Stuart Diamond, negotiation professor at the Wharton School of Business, and author of Getting More, advocates considering the pictures in the other side’s heads. What do they want? Can you get them what they want while getting your client what he wants? If you want to settle the case, the other side’s picture or view is important to you for this simple reason: they have what you want.
When it’s your turn to speak, speak directly to the other side, not to their attorney. What could you say, in lay terms, which would convince a layperson of your view? Story, metaphors and analogies can be very helpful here.
Your clients may be all fired up to continue the fight, even at the mediation. Let them know that the warrior they hired to represent them is prepared to do battle at trial, but that mediation requires a different skill set. Studies show that antagonistic, adversarial tactics are rarely productive in a mediation. Mediation skills include collegiality, cordiality and collaboration, which are more likely to be productive.
Walk your clients through the likely sequence of events that will occur. Let them know your expectation of their conduct is that they will be civil and cordial. Tell them how you plan to proceed. Remind them that patience is a virtue, especially during a mediation.