A Fresno Mediator’s Observations On Effective Negotiations Skills and Techniques In A Mediation: Things your client should know for a mediation--Joint Sessions
When you are preparing your client for a mediation do not gloss over the Joint Session. Although it is one of the most taxing parts of a mediation on a client, it can generate the most benefits, including an opportunity for the exchange of information and a cathartic opportunity to cleanse the clients of their anger and frustration with the other side.
What To Tell Your client About The Benefits Of A Joint Session At Mediation
As attorneys, we know what to expect at a joint session, and in fact, it might be your favorite time of a mediation: You get to argue, fight, and lay out your case in front of a third party-- a mini dry run on your opening. However, as the mediator, I watch the clients squirm, grimace, make exasperating looks, and at times yell during the joint session. If your client is reluctant to participate in the joint session, or even "be in the same room" (which I hear all the time) with the other side, you can relay to your client the benefits of a Joint Session:
An opportunity to argue your case in front of the other side in a dry-run;
An opportunity for fast transmittal of information to expedite mediation;
An opportunity for your client to hear the "bad stuff" from the other side, allowing you to protect your advocacy position of your client (this is particularly helpful with clients who demand to only hear positive positions from their counsel and any discussions of the downside of the case, results in comments like, "you don't believe in the case" or "are you my lawyer or their's".);
An opportunity for your client to speak with the other side;
An opportunity for your client to make a good impression and show he will present well at trial;
An opportunity to see the other side to determine if they will present well at trial;
An opportunity to hear the other side's arguments, facts, delivery, etc;
An opportunity to speak or ask questions of the other side;
As Ms. Jernigan described it:
"The presentation of the case in the initial joint session is a unique opportunity for the lawyers to “sell” their evaluations of the case to the other side. This might be the first time the clients have actually seen their attorneys in action, so it is a great opportunity for the lawyers to impress their clients as well as the other parties in the case. They should take advantage of this time and be at their best, committing the amount of time and preparation this opportunity requires. Preparation for the presentation should be approached with careful thought and deliberation."
For more information on the benefits and processes of Joint Sessions, check out Mr. Ben-Zvi and Ms. Vincent's article.
If your client is agreement with a Joint Session, he will need more preparation given the foreign process. For your client to succeed, he needs to be prepared for the Joint Session, which if he or she aces, will only help him throughout the day. From a mediator's perspective, here are a few topics to address with your clients about a Joint Session.
Start With The Basics Of A Joint Session, Even For The Litigation Savvy Clients
Even the savvy litigants, only see a mediation once or twice, so remind them of the basics. Some of the basic topics to discuss with your client about the Joint Session is go over the mechanics and what it a joint session is:
Who will be present
The mediator's role
The other counsel's role
Who will speak first
Who will speak next
The decorum expected while others are speaking
What you plan on saying
Also, talk to your client about the things we forget about, such as proper attire, where to sit (next to you), don't speak unless addressed and authorized by you, and how long to expect it will last. These small details will provide your client with ease and comfort since these are the things your client will likely be vexing about. You will be focusing on your argument presentation; your client will be focusing on if he should have worn a blazer.
Advise Your Client Of the Process Of A Joint Session, Including Who Will Speak & When
Next, discuss the parties and the protocol of the Joint Session. Explain to the client how the Joint Session will proceed, which should have been detailed in your Pre-Mediation Conference with the Mediator.
For example, advise your client that the mediator will likely address all the parties, discuss his role, the procedure of the mediation, confidentiality, etc., and then Plaintiff's counsel will lay out his position, followed by Defendant's attorney's retort. These statements typically do not last long, depending on the issues in the case.
Inquire if The Parties Want To Speak At The Joint Session & How To Do So
Again, this should be addressed in the Pre-Mediation Conference with the Mediator. And if agreed upon by the all counsel, inquire if your client wishes to speak to the other side. In fact, I encourage them to do so, but many attorneys do not want their clients talking at mediation.
The Pros of your client addressing the other side include:
He has an opportunity to "vent" or "Get out his frustrations," which may be all he needs;
They can get her questions answered. Sometimes, the clients want to participate and hear the other side, rather than their attorney answer;
He can hear the other side's story in their own words;
Allows the client to feel in control of the proceedings.
The cons to the parties speaking include:
Your client cannot control himself, resulting in unproductive outbursts;
Your client cannot handle be addressed by the other side for a variety of reasons or they are too emotionally fragile to interact with the other side (common in wrongful death cases, for example);
Your client simply will make a bad impression;
Your client will attack the other side and thus hamper negotiations.
He might want to talk to the other side, especially if they have a prior relationship or connection. Maybe the other side wants to say something. Find out if your client has a desire to say something or ask questions.
At first glance, lawyers automatically prohibit their clients from speaking. However, as a mediator, I have seen the fastest breakthroughs when they do speak. Sometimes, after "speaking their peace" the clients are ready to settle, especially in emotionally-charged cases.
If your client does wish to talk, confer with opposing counsel and the mediator as soon as you know. Doing so will prevent surprises at the Joint Session, which could derail the process if the other side feels ambushed.
If your client intends to speak at the Joint Session, make sure you go over exactly what he wants to say and how he wishes to say it. Accusations and sarcastic remarks are counter-productive, but if he wishes to address the other side directly about something, go through it with him. Coach him on the best phrasing. Discuss possible retorts and how to handle the responses.
Warning: If any of the parties intend to talk at a Joint Session, make sure everyone is in agreement so there are no surprises. If a party blurts out at a Joint Session, the other side will feel attacked, which could hamper the settlement progress and set you back hours.
Advise Your Client On The Most Productive Behavior Act During The Joint Session
Again, this one sounds like a no-brainer, but you would be surprised. When the other side (either counsel or client) is speaking, I have seen client's looking oblivious to giving stone-cold-death stares to yelling. It happens more than we wish to admit.
I understand--It's an emotional time and your client has someone across the table challenging their veracity, truthfulness, character, business practice, driving, etc. No one likes it and many cannot handle it.
When client's hear the "other side", they only hear lies, accusations, and attacks. So many times, they will lash out, slam their hand on the conference table or roll their eyes like an insolent teenager.
This does not help the process.
As attorneys, we are accustom to hearing the opposite side railing about how we are wrong or our case is weak. However, clients are not accustom to being criticized.
To prevent these unproductive behaviors, have a frank discussion with your client on how to act, when the other side is speaking. We assume our clients will remain stone-faced and stoic, but you would be surprised how emotional your client will become. Talk to them about posture, about listening, and reacting with patience and dignity-- No easy task, even for lawyers.
Remind your clients that the other side is judging them at all times, and if they are easily rattled in a conference room during a mediation, the other side will likely pounce on them at trial, where everything is heightened. Tell your client to show your "best self," and do not let the other side think they can "get to you." Plus, your client will have to sit through day(s) of trial hearing negative attacks on their case, so this is great practice for the eight day jury trial in July.
A good trick: Tell him this is a good test run for trial, where such behavior will not only be forbidden, but also could be damaging to your case. If your client sees it as "practice," he might be less likely to fly off the handle when the first counter-evidence is asserted by the other side.
A good way to combat your client's adverse reactions, is to prepare him for the other side's arguments. Go over everything you expect the other side will say, argue, introduce, or bring up. If it is a big case, you can have a paralegal or secretary play the other side, and have a mock Joint Session for your volatile clients. It will give your client an opportunity to hear the "bad parts" of his case, so when it happens at the Joint Session he does not experience the initial flare of emotion, which tends to occur.
Summary
When preparing your client for Joint Sessions, make sure you discuss with your client the following:
Benefits and downsides of a Joint Session
Logistics
Protocol of the Joint Session
If and what your client will say at the Joint Session
How your client will act throughout the Joint Session
Once you advise your client on these issues, he or she will be able to handle the Joint Session with confidence.
WHAT NEXT?
I am a mediator in Fresno, California who mediates throughout California and beyond. I am available for all your mediation needs. You can reach me to schedule a mediation at:
PEEL | GARCIA
3585 W. Beechwood Ave., Suite 101
Fresno, California 93711
559-431-1300
--Troy
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**This publication is provided as an educational service and is not meant to be and should not be construed as legal advice. Readers with particular needs on specific issues should retain the services of competent counsel.