Parties are often anxious about joint meetings, and try to avoid them. This is completely natural. It takes some courage to go into the room with the person with whom you are in conflict. Lawyers are often also wary of joint meetings. There is a natural fear of a loss of control. Will tempers flare? Will this set back the process? What will the client say? Will it do harm?
Yet most mediators, including this one, consider joint meetings to be beneficial to the mediation process. When the conversation is constructive, it is productive. Even where conflict arises it can be beneficial. We begin to find out what the dispute is really all about.
This article offers some tips for those assisting clients at a mediation where a joint meeting does take place at some point in the day.
When the other side is speaking it is best to listen actively. Try to listen without judgment. Just seek to understand the perspective of the other person. It is difficult to do, but try not to sit there thinking about your answers in response to what they are saying. This will allow you to follow Tip 2 ….
When someone on the other side has spoken, reflect their comments back to them: “As I understand it, what you are saying is ….”. It is good to do so tentatively so that they can correct you if you haven’t got it quite right. In doing this you will disarm them. They are expecting you to argue back. You are not. Instead you have listened. You have given them a very valuable gift that has cost your client nothing. It doesn’t mean you agree with them, just that you understand what they are saying.
Remember that you are in mediation for a reason. It is usually because the cycle of arguments has not unlocked some crucial obstacle. So, since you’ve committed a day to the process, why not try a different approach? If you state your client’s “position” or in some other way try to argue your case, as you have been doing up until now, the other side is likely to become defensive (unless they are also following Tip 1) and respond with a counter-argument. You will then probably respond with another argument. This is what has been going on for months and years and it has got nowhere. It is therefore best not to put forward your client’s “positions”.
Instead of restating your client’s legal position let everyone in the room know what the client would like to get out of the process. What they are hoping to achieve by the end of the day. It is a very different thing to stating a position or a legal argument. In mediation after mediation people say to me: “The real problem is we just don’t understand what the other side wants.” So, tell them.
Allow your client to tell his or her story if he or she wants to. Indeed gently encourage it. Parties to disputes often have a conflict within themselves. They are nervous about speaking but at the same time they really want to. They want to be heard. If parties who want to speak are not able to do so they replay the stories over and over in their heads. Their emotions continue to run riot and they cannot begin to think rationally. A story told by a client, especially with emotive content, is different from a legal position put by lawyers. A litigator once said to me, “The clients come to us with their stories. We build positions around them.”
Tell the other side what you believe they want. Again, say it tentatively, so that they can correct you if you haven’t got it quite right. Once again this shows that you have listened. It doesn’t mean that you are going to give them what they want. But it does show you are engaging in a constructive conversation.
Of course you cannot guarantee that the other side will follow the above tips. There is nothing you can do about that. All you can do is ensure that you do your best to create a good atmosphere so that a constructive conversation will develop. By following the above tips you are bound to improve the process. In any conversation, all it takes is for one side to change tone for the dynamic to alter. Or, as it is sometimes said: If one person changes step the dance automatically alters.