Peace be with you. . . in mediation

Since it is the season of peace, let's talk about the art of mediation. Conventional wisdom is that the parties should always have a joint session; that the plaintiff needs to "vent" in order for the case to settle; and that the dialogue needed to get the case settled starts with the joint session. Here is a modest proposal: limit the joint session to the mediator's spiel, to introductions of litigants who may never have met before, and a commitment by all to getting the matter resolved. Fifteen minutes, tops. Why? Joint sessions often do more harm than good. The plaintiff’s lawyer, no matter how nicely, castigates the company as having discriminated against his client as being sexist or racist or ageist or whatever. This dynamic makes it all the harder to convince the plaintiff to settle. "But Mr. Jones, you want me to take less money than we asked for. I thought we had a great case."

As for "venting," if the plaintiff's deposition has already been taken, then he or she has already vented and does not need to see his lawyer make his case in a joint session or do more venting in the private caucus.

Time in a mediation is precious and the traditional joint session just burns it up. Peace.