Many mediators in California will acknowledge that most parties in litigated cases do not like joint sessions and prefer to mediate using caucuses or separate sessions only. There are various reasons for this, among them a belief that counsel may lose control of the situation, that the joint session will devolve into a hostile, adversarial gathering or perhaps, that nothing will come of it as it will merely be a restatement of each party’s position thereby hardening the already drawn lines in the sand. No doubt there are other reasons as well.
But, joint sessions can be useful. I recently conducted a lemon law mediation in which plaintiff alleged the defects to be a squeaky or ticking noise, a stuck throttle and a blemish in the finish on the vehicle (which could barely be seen and only when sunlight was hitting it a certain way). We started off in separate sessions and after the first round, I suggested that the attorneys speak with each other outside the presence of their clients.
Why? Because according to the defense, the vehicle at issue was a racing car that was legal for use on city streets. As with most racing cars, it was manufactured in a streamlined fashion so that a lot of the normal insulation was absent. This way, there was less weight, and the car would go faster. But, without the usual insulation, it was also noisy. Second, while plaintiff complained of a stuck throttle, the computer in the car did not record that there was anything wrong: no fault codes were recorded. And, finally, according to defendant, the barely visible blemish on the vehicle was part of the manufacturing process, inherent in the finish.
In short, while plaintiff believed that the vehicle contained non-conformities that made the vehicle unsafe to drive and thus a “lemon”, defendant believed the case to be a non-case; it was a racing car and as with all racing cars, one should expect noises emanating from the vehicle.
As the issues were a bit complex, I believed having the attorneys discuss them directly would be beneficial. It was; the defense explained its position, pointing out that the owner’s manual mentioned the noise issues. Defense counsel also explained that the computer did not show any defects in the throttle and it would have if such existed and finally, that the hard to see blemish in the finish on the vehicle was inherent in the manufacturing process.
After this discussion, Plaintiff’s counsel returned to her separate conference room and spoke with Plaintiff about the issues. After some time, they invited me in and Plaintiff began speaking to me, raising additional points. As, again, these points were somewhat technical, I suggested that perhaps defense counsel come in and we have a “joint session” in which Plaintiff could raise these issues directly with the defense. All agreed.
The “joint session” proved valuable in that it helped to pinpoint or clarify the exact concerns of Plaintiff and gave defense counsel an opportunity to discuss each exact issue with its client and determine whether indeed, the issue should be of concern or simply inherent in the design of a race car.
While the matter did not settle at mediation, the joint session was certainly an eye opener for all concerned. Based on the discussion during that session, each party will conduct further research to determine the risks of going to trial. I strongly suspect that the matter will settle in the coming weeks. Each party will change their respective position slightly enough to make settlement palpable.
So, there is value to a joint session. It allows parties to exchange information and explore jointly the issues in the case. As I have always said, parties do not change their positions absent new and different information. A joint session allows precisely for that change of mindset.
…. Just something to think about.
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