How to behave in a Joint meeting
There has been a considerable debate in recent times about the usefulness of a joint meeting, with many advisors feeling that they do not add anything to the parties’ knowledge and delay the meaningful negotiations on the mediation day. If joint sessions are used simply to recite the pleadings, then that is possibly true, however if the parties fully engage with the possibilities a joint meeting offers, then they can be very powerful in facilitating an early settlement.
What are the possibilities offered by this meeting?
For a party, it represents a genuine opportunity to test how sincere the other side is in wanting to settle. It enables them to see and hear first-hand how the other side feels and to assess their behaviour. In effect, it is a subtle test of a witness from the lawyers’ viewpoint. It also provides an opportunity for the party personally to air all of the non-legal points that annoy or frustrate them about the dispute and to address “the elephant in the room”.
As lawyers it is very easy to discount the importance to clients of issues they have because they are not legally relevant. The lawyer is sympathetic to their client’s annoyance, but doesn’t dwell on the point because it will not assist the case. In court of course that is totally the right approach, but in mediation it might be the very thing that unlocks the dispute and allows the parties to settle. If a party feels really strongly about an issue, then the mediation joint meeting gives them an excellent chance to tell the other side about it and the impact it is having on their thought process. Since the point is not a legal one it will never be raised in court, but it is really useful for a party to be able to make their point, know that they have been heard by the other side. It stops the “if only they understood…” narrative that can prevent a deal being found.
It follows from that, that it is really helpful if a party presents at least part of its own case rather than the lawyers doing all the talking. Quite often a party is not happy to do the entire presentation, and having the lawyer speak initially (but not dwell on the law) followed by the party talking about both his frustrations and his hopes for a settlement, can work really well. That does give the lawyer a significant job to do beforehand in helping their client to identify the points they want to make and how to make them to best effect!
Another reason the lawyers traditionally are not fond of joint meetings is because tempers can flare if one side makes an accusation about the other or says something that touches a raw nerve. As lawyers we are trained to keep control of the situation and allowing clients to speak seems like a recipe for losing control. Mediation works best however when parties do vent their frustrations because otherwise there is always that niggling “they just don’t understand” in the back of a party’s head and that is a block to settlement. Getting those points out in the open clears the way for an agreement, and the mediator is there to calm things down if they get heated.
The joint meeting is also a chance for the mediator to see the parties in action and to further their understanding of the relationship dynamics at play between the parties. Additionally, there is almost always something said in the joint meeting which the mediator can refer back to later in the mediation process to help a party to understand the other side’s position on a particular point or to unlock a point of disagreement. They are therefore hugely helpful to the mediator in assisting the parties to find a solution to the problem.
- Ideally let the client do (at least part of) the talking
- Concentrate on commercial and personal points not the law (which everyone knows from the pleadings anyway)
- Don’t worry if one side’s opinion annoys the other side – the mediator will calm things down afterwards and it is better for them to “get it off their chest”
Beverley Vara was a partner in, and head of real estate litigation at, Allen & Overy LLP. Now she is a full-time mediator based at Maitland Chambers where she mediates commercial disputes, many of which, in a nod to her former life, have a property angle to them.