More Praise for Joint Sessions in Today's Daily Journal
JUNE 9, 2009 | FORUM
When It Comes to Joint Session Negotiations, Talk Isn't Cheap
By Victoria Pynchon
Whether parties to litigation should engage in joint session bargaining at some point in the process is a hot topic at the moment because joint session practice is nearly a dead letter in one of the most active and sophisticated mediation markets: Los Angeles.
Most attorneys do not like to begin their mediated negotiations with a joint session and neither do many mediators. The reason most often given is everyone's desire to avoid a polarizing set of zealously adversarial presentations.
The joint session, however, was never meant to be a mini-trial or reiteration of the parties' adversarial positions - positions with which they've been living, and defending their clients against, for weeks, months, years, even decades. The joint session was designed to give the parties with the dispute - the clients - the opportunity to brainstorm mutually acceptable solutions to their undeniably mutual problem: the sinkhole of litigation.
The news for mediation advocates (litigators and trial attorneys) is that avoiding joint sessions may deprive the parties and counsel of the "small talk" necessary to put the parties into a collaborative, even generous mood.
Attorneys and litigants who avoid making any remarks or engaging in any dialogue in a joint session miss an opportunity to hear what is important to the other side, observe the demeanor of the parties and potential witnesses, and begin a conversation which can allow venting about the past and movement toward the future.
Thanks for dropping by, Ruth. All of your points are well taken and I appreciate your making them.
I'm on a personal campaign to remove the word "venting" from mediators' vocabularies because it suggests an eruption on the part of one party that I experience as a diminishment of the true joint session process taking place in a safe environment in which both parties are permitted to "take their part" in the injury causing event or miscommunications that too often lead to business litigation.
Too often the attorneys tell their client that it's good to allow the other side to "vent" they're sending a message that they must put up a false front, tolerate the other side's "venting" and be unmoved by it when the goal - in addition to settlement - is to move toward accountability amends, forgiveness and reconciliation.
Lofty goals for the settlement of civil litigation, I know, but I have seen this transformative process work in commercial litigation too many times not to have hope if the parties are willing.