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November 15, 2017 Practice Points

Are Opening Presentations at Mediation Valuable, and If So, Under What Circumstances?

Thoughts from two national mediators

by Jeff Kichaven and Paul Van Osselaer

Jeff Kichaven: While every case is unique, I presumptively have joint sessions. I know other mediators don’t. Sometimes I think I have more joint sessions than all the other mediators combined. Turns out lawyers like them. That’s because we go in prepared to generate progress.

We don’t have old-fashioned “plenary” joint sessions where everyone hurls firebombs. We have joint sessions with narrow, focused agendas. After I read the mediation briefs, I call the lawyers to focus on the central issues and narrow our agenda to just those issues. In the joint session, we stick to the agenda. I ask lots of questions. Well-prepared lawyers welcome them.

This sets the stage for caucuses in which we discuss and evaluate the joint session discussion of the agenda items. It helps clients understand there are two sides to the story. That’s how we create flexibility, generate progress and get more cases settled.

Paul Van Osselaer: Opening presentations beyond a “meet and greet” can have value, but it depends on the case. I don’t have opening presentations in all cases. The key question is whether they will advance the ball—perhaps in ways only I know based on private pre-session conversations with counsel. I seek counsel’s input and make a decision in consultation with them, recognizing there are regional preferences. Where we have them, I often privately suggest issues to focus on or avoid and may even suggest an approach. I want to know what’s coming, including the anticipated length of time for a planned formal presentation.

Among the factors I consider (and I hope counsel consider) are: How early is the mediation? In early mediations, openings can be helpful to exchange of information and give all parties a sense of what may lie ahead. Have the parties exchanged mediation statements/briefs? I ask counsel to consider exchanges their statements, sending me only what they truly want confidential. How many parties are there and how will the time be used? And most important, how well do the parties—as opposed to just their counsel—know the other side’s positions?

Like the start to a good book, how a mediation starts will keep interest and often determine satisfaction with the ending.

Jeff Kichaven is with Jeff Kichaven Commercial Mediation, Los Angeles. Paul Van Osselaer is with VanOsselaier Dispute Resolution PLLC, Austin, Texas. They are cochairs of the ICLC Alternate Dispute Resolution subcommittee.

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