Law Times

LaW TIMeS • NOVeMBeR 16, 2015 Page 13 www.lawtimesnews.com Tips for mediation success Lawyers encouraged to consider opening statements in joint sessions BY MICHAEL McKIERNAN For Law Times awyers who avoid open- ing statements in me- diation joint sessions should reconsider their approach, according to a Cana- dian mediator. Allan Stitt, the president and chief executive officer of Toronto-based ADR Chambers, says it has become increasingly common for lawyers on one or both sides of a mediation to ask him to move straight to caucus and bypass the traditional direct opening address for fear of an- tagonizing the opposing party. "The lawyers fighting against this are those without the skills to persuade the other side," he says. "If you're going to pass up your only opportunity in the whole process to persuade the other side, then that is an ad- mission that you are not skilled in an area that you should be as a lawyer. I see it as the equiva- lent of a lawyer who is about to go into court and decides not to argue before the judge because they might get angry. In media- tion, it's not the judge who de- cides; it's the other side." Stitt acknowledges that a bad opening statement in joint session can make the situation worse for the parties in a media- tion but he says lawyers should focus on the possibility that a strong performance could lead to a better deal for their cli- ent by improving relations and increasing the possibility of a settlement. "If your opening is making the other side mad, my reaction would be that it wasn't a very skilled opening and that you should learn how to present a better one," says Stitt. "For lawyers to argue that the better option is to give up your right to try to persuade them altogether is absurd." Bernard Morrow, a for- mer litigator who's now the principal of Toronto's Mor- row Mediation, says the re- luctance to directly address opposing parties is part of a wider trend against the use of joint sessions in media- tion. He points to a survey by global alternative dispute res- olution firm JAMS Interna- tional ADR Center Ltd. that found that only 45 per cent of its neutrals around the world regularly used joint sessions. The number compares with about 80 per cent of the same respondents who said they had employed joint sessions at the outset of their mediation ca- reers. "There is a perception on the part of some lawyers that they have more control over their cli- ent and the process when there is not a joint session," says Mor- row. "They see the potential for emotions to become inf lamed or for information to be revealed that they are not prepared to divulge. Caucusing might be easier for both the client and the lawyer because it provides a buf- fer." The irony, says Morrow, is that in attempting to retain agency over the process by skip- ping joint sessions, lawyers are happy to place more power in the hands of the mediator. "I'm essentially the one with the most extra weight on my shoulders if I'm shuttling between the two sides, putting my own spin on the dialogue," he says. Apart from personal injury matters, where joint sessions have retained their popularity, Morrow says he has witnessed a decline in their use in most areas of the law, including commercial disputes and particularly in em- ployment law, despite his own strong encouragement for par- ties to engage in some sort of di- rect discussion. Morrow worries that the lack of joint sessions may have a negative effect on the out- comes of mediations and has be- gun research to study the impact. "There's a dynamism and alacrity you get in real-time dis- cussion that can't be duplicated in caucus," he says. Mitchell Rose, a lawyer and mediator at Stancer Gos- sin Rose LLP in Toronto, says only the rarest situations, such as an extreme power imbalance between the par- ties or a threat of physical violence, will prompt him to recommend against a joint session. Otherwise, he says joint sessions can offer the parties a psychological ben- efit, especially if there will be an ongoing relationship after the dispute settles. "They need to learn how to interact with one another. And if they can't resolve it, they're going to be seeing a lot more of each other any- way," he says. According to Jeff Morris, the mediator has a role to play in ensuring the parties are ready for a joint session. "Your role is to coach the par- ties and counsel. There needs to be some advance discussion about what they're going to talk about in the joint session and how that can move them to- wards, rath er than away from, a resolution. You don't want a shotgun approach where every- thing comes up or you're simply repeating what was said in the mediation brief," says Morris, the founder of Jeff Morris Me- diation in Toronto. Rose says the biggest mistake lawyers can make in a joint ses- sion is approaching the media- tion with a litigation mindset. "If you're grandstanding and telling the other side why they are wrong and why they are go- ing to lose, it's not going to be conducive to resolving the case," he says. "The average person prob- ably stops listening to negative information after a few minutes. Joint sessions require a much more subtle and careful form of lawyering that takes into ac- count the other side's feelings." He says one of the most ef- fective opening statements he has ever heard of came in re- sponse to a long and traditional litigation-style opening before another mediator. "They turned it over and the lawyer for the other side simply said: 'Thank you for coming. We appreciate it. You have a good lawyer and you will be well served at trial, but we're here to talk about settlement. Let's do that,'" says Rose. "It came out of the blue and completely dis- armed the other side." Stitt says parties in mediation are much more likely to respond to points about the risks of liti- gation in joint sessions rather than the relative merits of each side's case. "People are more comfort- able hearing about and consid- ering the risk that a bad judge could decide their case wrongly than hearing about how weak their case is and what a liar they are," says Stitt. "You're never going to per- suade the other side you're right, so there's no value in doing that." LT BRIEF: ADR Untitled-1 1 2015-11-04 9:19 AM L It's important not to approach mediation with a litigation mindset, says Mitchell Rose. 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