I mentioned in the last blog the importance in my opinion of having a pre-mediation caucus (fancy mediator jargon for a phone call) with the lawyers involved in the case. I do not always have the mediation submissions by the time of that call – it is helpful if I do, but not required. I always learn something about the case in these calls that is helpful. Every single time.
The lawyers representing the parties are far more at ease in this context than in front of the client in the actual mediation session. I hesitate to say that they are more honest with me in this call but they are certainly more objective in their assessment of the case than they are in either the mediation submission or during the actual mediation session.
After exchanging pleasantries (or grumbling about the weather), I usually just ask for the elevator explanation of the case and what it is all about. If I have had the benefit of reading the mediation submission before this call I will ask any fact specific questions that might be raised by what I have read. This is also my chance to explore and make sure that the lawyer I am talking with has all the documentation he or she needs to be ready for mediation day.
From facts and documents the conversation will then switch to whether the lawyer believes that settlement is possible. If the mindset coming in to a mediation is that settlement is not possible it will make for a very long (or short) day. This is my chance to begin to address the possibility of impasse and how we might deal with that inevitability. It is also my chance to find out if the client has unreasonable expectations and/or the lawyer has client control issues. Telling the mediator about those issues is not a sign of weakness but rather a sign of being a good lawyer. As a mediator the more I know about those issues the easier my job becomes.
I will also ask the lawyer for any suggestions as to how to approach the mediation. I strongly encourage having a joint opening session. I know that this is frowned upon by some lawyers and I think the reason is less a fear of potential tension between the parties and more a fear by the lawyer of losing control. I have mediated cases where the parties hated each other so much it would have been a disaster to have them in the same room across the table from each other. Those situations are the exception rather than the rule, however, and I do my best to get the lawyers on board with meeting together at least for a short time.
Finally, I will ask the open ended question of whether there is anything else the lawyer thinks I should know. Some enlightening responses often come form that question. I also will ask who is planning to come to the mediation. I want to know this so I am not surprised by who or the number of folks in attendance.
As always contact me if you have any questions.