To Open or Not to Open?

Some Considerations for Plaintiff’s Counsel on the Joint Mediation Session

There has been a lot of discussion of late on whether mediations should begin with joint sessions.  Although there may be the rare case in which the atmosphere is so poisoned that the parties must remain separated, in general, I propose that there is much more to be gained by the joint session than by its omission.  Indeed, it might be precisely these emotionally-charged cases that can benefit the most from a well-considered set of openings.

The worst time to make this decision is the day of the mediation.  Rather, during pre-mediation conferencing with the parties, the mediator should explore the issue of the joint session and properly vet it with counsel.  The mediator and the parties, working together, should determine whether an opening is appropriate and what approaches offer the most benefit.  For both parties, the goal is to build bridges, not burn them.  With the benefit of working with counsel ahead of time, the mediator should have a good pulse on the emotions and can play a critical role in helping the parties craft an effective approach to the opening session.

I address below a few points for your consideration in evaluating the possible benefits of the opening session for the Plaintiff’s team:

Allow Plaintiff a “Day in Court”

The mediation is likely plaintiff’s first [and perhaps last] opportunity to see her case presented. Don’t waste it.*

In certain cases, the plaintiff must be allowed to express his/her anguish, and the defendant needs to politely absorb it.  This may be in the form of a direct statement from the plaintiff, through counsel, or both.   From my experience both as mediator and mediation defense advocate, some of the most compelling inducements to settle have been in the form of persuasive statements directly from the plaintiff.

Obviously, each case and each plaintiff are unique, but if you have a strong plaintiff, incorporate him/her into the mediation.  Some cases are mediated before conducting a single deposition.  Be assured that defendants will be evaluating your client as a witness, and this should be played to your advantage.

Conversely, if plaintiff’s counsel is actively shielding his client from the parties and the mediation process, you may be telegraphing that you do not have much faith in your own client and, by extension, your case.  Consider these options carefully, you may have a lot to gain prepping your client for the mediation and considering the appropriate level of participation.

*I believe the plaintiff and decision-makers MUST attend the mediation and actively participate.  On the phone or squirreled away in a separate room does not suffice.

Plaintiff Should be Invested in the Process

Plaintiff must often be guided into the mindset to settle.  As counsel, we have grown accustomed, perhaps hardened, to the concept of reducing even the most horrific losses to dollars.

This will not come easy to most Plaintiffs.  In certain cases, considerable time may be needed for the mediator to meet with the Plaintiff’s side and allow the plaintiff to acclimate to this bargaining process. In some cases, non-monetary aspects may be more important to the plaintiff in the beginning than the money aspects of the settlement.  Beginning with these “softer” components to the settlement may help bridge the gap to the monetary negotiations.

This a Chance to Show You’re Serious

The opening is directed to the other party(ies), not the mediator.   If you follow my blog and articles, you know this is a mantra of mine.  You need not be fire and brimstone, but you can show your commitment and preparation.  A well-crafted and well-presented opening by counsel can send very important messages to the other side.  The message you want to send might include: I am competent; I am ready to litigate this case to conclusion; I know my case; I have a strong client.; AND I am someone you can work with now to resolve this.

Perhaps this is the first impression you will make on defendants, and the rare one in which you have the opportunity to dial direct to the decision makers and the holders of the purse strings.  Why would you thoughtlessly toss that away?  You are at this mediation not to win, but to persuade, and the people you need to persuade are sitting right across from you.

Be Likeable in Your Opening

When I sit as a defendant in mediation and the Plaintiff delivers an opening, I am constantly grading my adversary.  I am asking myself, “what will the jury think?”  A brash, arrogant approach will alienate a future jury.  Adopting a conciliatory tone that, despite all contrary inclinations, gives the defense team even an inkling that a future jury will find you both persuasive and endearing is adding value to your case.  This bears directly on the risk management equations that most insurers bring to the table.  And seriously, doesn’t presenting a likeable persona to the people who will decide whether to settle [and for how much] make a lot of sense?

If the parties are properly prepared, the odds of counterproductive openings are dramatically reduced.  Approaching the opening as if the mediator is a judge and opposing parties are irrelevant is not the right approach.  However, a Plaintiff’s opening, calibrated to persuade the adversary, could set the tone for a very productive day.

I endorse the joint sessions in all but the rare exceptions that, of course, prove the rule.

My recent article, “Mediation Advocacy: What Tools Do You Bring to the Table?” can be found in the Westchester County’s annual Bar Journal’s Journal. Vol 41. No.1 at 27 (2020).


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