Speaking to the Opposition

November 16, 2009 · Filed Under Mediation - General · Comment 

Many attorneys  coming to mediation beg off from the usual joint session approach of most mediators including “yours truly” out of a fear that direct confrontation is likely to result in counterproductive anger and hostility.  This concern has merit for it is based on experience with the tendency of lawyers to present their arguments in adversarial form.  “The defendant was in gross violation of the law”  or “if this case goes to court we will show that plaintiff has exaggerated…or lied about…, etc.”  If you sit down across the table and say I (or my client) did such and such only because you (or your client) refused to be reasonable, or acted irresponsibly”  why wouldn’t you expect the opposing party to begin to boil?  Likewise if you claim the other side has exaggerated or fabricated facts.  If you carry your adversarial zeal into the mediaton room you can expect to trigger anger and the opportunities offered by the joint session may be largely or completely lost.  See “Getting Outside the Litigation Box Through Better Negotiation” at the Articles tab.
My suggestion is that you confer with opposing counsel ahead of time and suggest a cooperative, communicatiive, non-confrontational approach during joint session in order to avoid inflaming passions, and during joint session to manifest a polite and sincere interest in finding common ground. Where it is necessary to say potentially inflamatory things about the other party, couch them in terms of “the information that we have suggests…” or “we realize you (other party) have a different perspective on this, but so you will understand where we are coming from ….” Each attorney will have an individual approach, and may come up with better formulations, but by using active listening and a diplomatic approach you promote a productive joint session. Dave Finch