Are you Ready to Agree to Agree?
As a practicing attorney for more than 36 years and as a mediator for the last fourteen years, I have seen my share of changes in the legal scene. And, it has only been in the last 7-10 years that mediation has really been the primary means of settling litigation claims in Atlanta. As both an advocate and a neutral through the years, of one fact I am certain—one of the most debated topics regarding mediation has been the question of what should be done, and what should be allowed, in the opening session.
The questions I see most frequently raised in this debate are:
“Should you have an opening session?”
“Should defense counsel be allowed to address his or her comments to the plaintiff?”
“Should each party lay out his or her case in opening session?”
“Should defense counsel make brief comments in the opening session?”
While each of you certainly has your personal opinion on the subject, I personally believe it is the mediator’s responsibility to set the stage for each party to say “as much” or “as little” in the opening session as he or she desires. However, the caveat is, before the day is over, each party needs to lay their cards on the table so that a fully informed decision on the risks of trying a case or settling a case is available to all.
In my opinion, the role of the mediator is to have the necessary information to evaluate and convey a neutral, impartial and constructive view of the risk each side faces, as well as the hurdles that must be overcome if the case goes to trial. Attempts to attack, malign or denigrate either party are not necessary, productive or professional. An attorney, particularly a mediator, is skilled in the ability to wordsmith, both professionally and constructively, while taking into consideration the emotions and strains inherent in the very act of mediation, and should keep that in mind during all mediations.
While the decision on what to reveal at opening session varies from case to case, this topic seems to continually incite plaintiffs, the defense bar and attorneys to engage in controversial discussion on the subject. Why not instead agree to agree? We can start this process, outside of the opening session, by engaging in ongoing, constructive dialogue. Perhaps through this dialogue we can, as professionals, come to a position which is beneficial to all parties and less likely to fuel the fires of disagreement. My vote is to agree to agree.
That’s it for The BAY Beat. I look forward to your comments.
Bruce Barrickman