MEDIATION TIP: Setting the Stage for Opening Session
WHAT DO YOU SAY IN THE OPENING SESSION TO ORIENT THE PARTIES TO THE PROCESS AND GET THINGS OFF TO A GOOD START?
In the opening session, I first give the parties a brief background on my education and experience. Knowing that I have nearly 20 years of courtroom experience and have dealt with the issues they are facing builds credibility and they can be assured I understand the legal arguments, strengths, and weaknesses of each side’s case. I discuss the benefits of mediation, stressing the efficiencies in time and costs, but most importantly the ability to take control of your dispute and use the mediation process to craft a resolution that meets your individual needs. Juries can be unpredictable and litigation costs can spiral out of control. Mediation gives you the power to take back control and negotiate a settlement on terms that you set.
I explain that the mediation process is completely voluntarily, that either side can walk away at any time, and that no one, not even their own lawyer can force them to agree to any terms that they do not want to agree to. I make it clear that if any agreement is reached, it is solely because the parties, not their lawyers, are okay with the terms. This gives the parties comfort that no one is there to decide their case for them or to force them into any settlements that they are not comfortable with. I also ensure all the parties have the capacity to reach an agreement and feel comfortable proceeding.
Thereafter, I explain that the plaintiff’s counsel will share any information he/she wants to share with the rest of the group and encourage the plaintiff to feel comfortable adding to what their lawyer has said. I often see parties speaking freely during the opening session and I encourage this, as it is an important part of the settlement process. Defendants and third parties are afforded the same opportunities to speak freely about their factual and legal positions and to add to what their counsel has provided. Having the right to speak freely, uninterrupted, and in the confidential setting of mediation, the parties feel and know that they are heard, respected, and understood. I find this is critical to each party’s willingness to be open to discussing the disputed factual and/or legal issues and in weighing the strengths of their adversary’s case. I have seen many opening sessions where parties express remorse, regret, or shame for past events that brought the parties to where they are today and those authentic and personal expressions can often be the start for a productive negotiation on how to move forward from there, how to repair or rebuild the relationship, and how to end the legal disagreement.
Learn more helpful ADR insights from Jennifer Grippa
About Jennifer Grippa
As a mediator and arbitrator at Miles, Jennifer Grippa handles complex disputes, including automobile, aviation, banking, bankruptcy, business/commercial, civil rights, construction, contracts, cybersecurity, employment, engineering and construction, environmental, estate/probate/trusts, false arrest and imprisonment, federal law, government, insurance, intellectual property, international, medical and nursing malpractice, personal injury/torts, premises liability, product liability, professional liability, real estate, securities, surety, third party criminal acts, trucking, trusts and estates, and wrongful death matters.