Standard mediation training promotes the idea that we should start with a joint session. This may not always be the best idea. There should not be a general rule, as all mediations belong to the participants and the rules must be flexible.
Before the mediation, communicate with opposing counsel about the insurance issues, secure copies of the policy and any reservation of rights letters. For instance, if the policy limits are low and damages are high, there should be a discussion about the defendant's ability and/or willingness to contribute to the settlement, as well as an asset search prior to the mediation.
Below we look at the benefits, the problems and a proven realistic approach to joint sessions.
Although an opening joint session gives the parties and counsel a chance to say hello and to present and explore the facts, legal issues, and damage calculations (the benefits), valuable time is often wasted going over issues well known to the parties and counsel and lawyers’ opening statements often harden people in their positions and may unnecessarily hurt feelings (the problems).
The proven realistic approach is, if possible, to start the mediation with a joint session only to go over the housekeeping issues, giving the parties a chance to meet and focus on their commitment to the mediation process. Then immediately break into separate caucuses with the mediator to determine if a joint session is necessary and/or will be helpful. Be flexible and creative, a later joint session may help get the issues resolved. If there is agreement that a joint session will advance the mediation, then the parties, counsel, and the mediator can determine the goals for the joint session, set the agenda, and budget an appropriate amount of time.