Choices for Responsibility
In the joint session mediation the parties have choices and decisions to make to end their conflict. Letting the parties choose the process protects the party from an imagined weakness. The mediator should work them through accepting joint session and away from their imagined weakness. It’s not therapy, but coaching the party to take part in the process is mediator mastery. Lawyers need to practice this also. Pointing out that in mediation the client expressing a need is good and understanding each other is even better. However, there are many lawyers overlooking their role in mediation one of support and believe if they are not active it shows they are weak in representing their client. Pretty far from taking responsibility in supporting their client. Mediation is not about the lawyer. It is about the client and their choices to end the conflict.
In their book, "Mediation," authors Jay Folberg and Allison Taylor suggest that lawyers need to work differently in mediation than they do in court. Preparing a client for mediation is very important and supporting the client as counsel in the mediation builds confidence in the client to be able to sit in joint session and discuss their conflict. For some this would be upsetting. After all lawyers are there to represent their clients. But as suggested by Folberg and Taylor represent in another way. To take second chair so to speak and be quiet except to advise their client. Also aking for time (caucus) to advise their client and then to return to the table. In "zealous advocacy" the lawyer is battling for the client and making opening statements. Speaking for what? Opening statements in mediation are dangerous for they can set a tone just as they do in court. It’s the parties in conflict who must be speaking. And setting their tone plus expressing their goals to gain agreement. Letting the mediator do the work is not the way. Yet, the parties are told this is the norm. Of course the mediator goes with the flow and starts the mediation in separate rooms and starts the shuttle. We also shuttle responsibility when the mediator goes walking. A very negative approach to the process.
The responsibility can always be found in the party and in the lawyer. The parties supposedly come in good faith and listen to their mediator and each other. The mediator acts to facilitate that responsibility so there will be progress. The goal is the resolution of the conflict and not just settlement. Settlement is a common enough word used in the legal area and by lawyers. The mediator controls the process maintaining the ground rules. The parties control the outcome. The lawyers advise their clients. The goal is agreement.
At the start of mediation there is an Introduction by the mediator. Many forgo this step or let the lawyers make opening statements, PI cases typify this. We’re looking to make the parties responsible. To find it we need to have the parties understand what they need to do. It is to be in discussion with each other.
The mediator explains the role of the party and the role of their counsel. All understand that the parties become responsible for the discussion. The mediator works with either party when there is a difficulty in making their point expressing their need. Hence, the mediator’s toolbox and its proper use. If there is a special need that a short caucus might help, the mediator or a party, or a lawyer calls for it. Returning together in ten minutes or so.
Some commenters of the mediation process, believe during the Introduction the mediator is telling adults how to behave. They make it sound insulting. Where is the problem? The parties want to end the conflict, ground rules help them get there. It’s necessary to have civility in the process. The parties get all the latitude and creativity they need by being in control of the outcome. Being responsible for the outcome will be more satisfying to them in retrospect. A long time ago we trained a retired lawyer who became in demand with waiting time eight to ten weeks. He is now retired from mediation. Telling us that as time went on he did more joint sessions and wished he had started out that way. There is value in being responsible; for the mediator, for the party, and for the counsel. The mediator controls the process and the parties control the outcome and the lawyers are the important counsel…..
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