Like many of my mediator colleagues, in most of my mediations, the parties and counsel are kept apart during the entirety of the mediation. I do this because I believe that keeping the parties apart is more likely to spark open and honest communication which will lead the parties to resolve their dispute more easily. Two recent mediations have proven to me that sometimes the best way to reach agreement is to bring counsel and/or the parties together.
In a recent habitability mediation, defendant’s counsel had pictures of the premises that plaintiff’s counsel had not previously seen. I brought counsel together for the sole purpose of permitting plaintiff’s counsel to see the pictures. Bringing counsel together unexpectedly also led counsel to have an open conversation regarding the relative strengths and weaknesses of their respective case. Not surprisingly, shortly after this open and frank discussion, the parties reached agreement.
In another mediation regarding a mechanic’s lien on a large apartment development in Los Angeles, the parties were extremely far apart and the likelihood of them reaching agreement was remote. In response to what plaintiff perceived as a too low settlement offer, plaintiff threatened to leave the mediation. I convinced the plaintiff to continue to negotiate and I let defendant know plaintiff’s reaction to its last settlement offer. The defendant property developer then asked if he could speak with plaintiff directly without counsel present. With everyone’s agreement, I facilitated that private conversation between plaintiff and defendant. While they did not agree on the merits of the case, they did discuss what they were hoping to achieve in settlement. Soon after that facilitated discussion, the parties’ negotiations became a lot more productive, and the parties soon reached agreement.
These two examples did not change my mind regarding the substantial benefits of keeping the parties and counsel apart during mediation. However, the examples do show that sometimes a joint session may make all the difference between a case that settles and a case that does not.