Since that time, I always try to make sure when I am acting as an attorney in a mediation, that I fight hard to get the best possible deal for the client, and that I make sure before my client signs anything, that he or she is very comfortable with what they are doing. When I act as mediator, I tell the participants to listen first and foremost to their own attorneys' views of the case. Everyone has a role to play in a mediation, and there is danger in shutting anyone out.

As to Jan's question about joint sessions I have two answers. I do believe attorneys should begin to consider accepting the advice of mediators with whom they've had good experiences when the mediator recommends a joint session.

Attorneys are rightly skeptical of these sessions, however, in light of the dozens of horror stories they've told me about joint sessions winging out of control and damaging any chance for settlement.

This is not, as both Joe and Jan know, a problem with joint sessions, but a problem with mediators who are neither trained nor experienced in managing joint session mediation. Joe's experience is just one of many examples of attorneys being 'stung' by inept joint session mediators or those who see their primary "skill" as one of the Dark Arts, i.e., coercion.

Mediators who have extensive community mediation experience, however, are extremely adept at handling joint sessions because all community mediations are primarily conducted in that fashion. The wise attorney says "no thanks" to any mediator without this experience in one setting or another and "yes" to a mediator who possesses the experience AND who is already a trusted advisor to the attorney hiring him or her.

THANKS for keeping the conversation going!

On the second issue raised by Jan, I have no trouble being the "fall guy" in the mediation if that's what is required to close the deal. In fact, I've even made the suggestion myself from time to time. "Blame it on the mediator," is a good cop/bad cop tactic that can be played in one room with the attorney (saving face) and the mediator taking the rap for the bad news that the attorney can't deliver to the client without appearing traitorous.

As to reconciliation, I am a firm believer in the transformative power of joint session mediation. I see it happen routinely in community mediation in situations far more fraught with emotion than the commercial litigation I mediate for a living. I also believe, as Jan certainly knows, that money can and often is saved or spent more freely when the parties experience a transformation of their heretofore fixed idea that their opponent is . . . frankly . . . THE DEVIL. I make recommendations for transformative work when something about the parties' expression of emotion suggests to me that it would be helpful in breaking impasse or improving the result for both parties. At the end of the day, however, I am guided by counsel and would never presume to come between an attorney and his client.

My experience is mixed: I have definitely had lawyers in cases, negotiations, trials, arbitrations, and mediations that were part or all of the problem, not the solution. I have also had folks who helped clients see the light.

As a litigator and trial attorney and business lawyer, I feel my job ultimately is to use whatever tools I can to solve the client's problem. That generally involves trying to resolve it amicably rather than risk lack of certainty, but sometimes that just will not happen.

It is pretty funny what you said about mediators blaming the lawyers though ... much of the same dynamic that the lawyers are generally bringing the mediators the work! Definitely a great parallel there on a lot of levels.

Give me the most challenging parties, the most diverse perspectives and the most hairy discovery, and with two really good lawyers, we can get the case resolved. I owe the majority of my "mediator magic" and my resolution rate to good lawyers. I thank God that they keep bringing their cases to me because I know that with them in the game, my odds are good.

The difference is in the mediation seasoning of the attorney. Good lawyers who see themselves as Counselors at Law, aren't afraid of allying themselves with the mediator to help their client achieve closure. It's only lawyers who come from the old school of thought that neither the mediator, nor the opposing counsel or any client at the table are to be trusted who some mediators feel "get in our way".

For me, this highlights the need to continue educating counsel, and, at least for me, to keep relying on them to bring all of their intellect and creativity and problem-solving skills into the room when they come to visit.

Thanks for raising and analyzing the issue - you're the best!

Off to mediate! Thanks for conversing with me on the blog. It makes my life a genuine pleasure.

I actually do a considerable amount of work in joint sessions. However, what I say is that there is nothing prescriptive about the way I work. I discuss the potential value of joint sessions, of caucuses and let everyone know they can ask for a caucus if I don't raise it. I also let counsel know that from time to time I may suggest the possibility of a caucus with only the clients (that meeting is never to finalize an agreement if people are represented). I want to know counsel's perspective, in advance, regarding that issue. The last thing I want to have happen is to have an attorney be surprised by something I say or do at a session if that can be avoided. At the initial session I talk with everyone (though directed to the clients) about the role of legal counsel in mediations and I let the clients know how important it is that they are represented by counsel who have the capacity to not only be a strong advocate in litigation, but also a settlement advocate at mediation and let them know every attorney doesn't have that skill due to the time-honored roles attorneys are accustomed to having.

I typically find quality counsel to be very helpful. I typically find that, at times, even quality counsel needs my help to work with the client. I also find non-quality counsel to be problematic, however, low competency counsel is problematic not only at mediation, but throughout whatever process is place.

Finally, we need to stay vigilant about continuing to educate the Bar...

Vickie, though I've already tweeped it to you, let me just reiterate my appreciation for you and the many great blogs you post, including this one which I think, is one of your best.

When I read the phrase "We're all in this together," and saw the video clip, I realized the inner message of how we see people and form our assessments of that person without understanding who that person really is, their beliefs, or what their values might be. During last Sunday's Mass, the pastor also pointed out that each of us has a unique talent or gift, different from another's talent, and that we need to find a way to use our special talent for the collective good of all people. Victoria's article helped me appreciate the insight attorney's bring into mediation and the benefit of incorporating the strength and talent of the attorney during the mediation process.