If your business is embroiled in a legal dispute, you have likely been counseled on the process of mediation. With this being a form of alternative dispute resolution, the mediator (at the beginning of the session) will likely have a joint conference before breaking into individual caucuses where the mediator goes back and forth between rooms.
Ideally, this meeting is meant to diffuse tension and set basic ground rules for the day. And sometimes, there may be a consensus as to what issues may be resolved before the mediation begins. However, according to a recent dailybusinessreview.com article, fewer litigants are taking advantage of this session.
A survey of mediators found that less than 25 percent of California litigants did not want to have an initial joint session. Apparently, mediators and attorneys have found that joint initial meetings have become more confrontational, particularly with commercial matters. Before the mediation, counsel for each party has likely prepared mediation briefs outlining their respective positions, and the litigants have likely become entrenched with their positions. As such, it appears that more parties are coming to mediations like cowboys in the old west ready for a gunfight.
Because of this, mediators will not insist on joint initial meetings if the parties do not want one. At the same time, the refusal to participate in one may present additional problems during the mediation. Indeed a mediator may seek to diffuse this tension by playing “devil’s advocate” with each party to probe the strengths and weaknesses of each position.
Nevertheless, not every mediation has to start from an adversarial position. For more information, the attorneys at Shulman Bastian Friedman & Bui LLP can help.