1779134119387
May 18, 2026 19:56
· 5:24
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· 3 Altaveus
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Speaker 2 (1779134119387)
I try to encourage folks to go into joint
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Speaker 2 (1779134119387)
session, although I also make it very clear to them that it
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Speaker 2 (1779134119387)
is their choice.
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Speaker 2 (1779134119387)
And I talk about the benefits of
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Speaker 2 (1779134119387)
a joint session.
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Speaker 2 (1779134119387)
And again,
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Speaker 2 (1779134119387)
this is on a case -by -case basis.
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Speaker 2 (1779134119387)
It might be important for the other side to
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Speaker 2 (1779134119387)
see the...
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Speaker 2 (1779134119387)
the plaintiff,
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Speaker 2 (1779134119387)
for instance,
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Speaker 2 (1779134119387)
at least meeting the plaintiff,
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Speaker 2 (1779134119387)
if not hearing from the plaintiff,
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Speaker 2 (1779134119387)
let's say, in a personal injury case so that they can
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Speaker 2 (1779134119387)
describe for themselves their injuries and so on.
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Speaker 2 (1779134119387)
Because even if they've already had a deposition and even if they've already covered
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Speaker 2 (1779134119387)
it, to actually engage in a conversation in a more relaxed,
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Speaker 2 (1779134119387)
sort of open -ended...
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Speaker 2 (1779134119387)
kind of discussion has a lot more authenticity.
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Speaker 2 (1779134119387)
It gives the plaintiffs a chance to tell their story and it gives the
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Speaker 2 (1779134119387)
defense an opportunity to take another look at the plaintiff
0:58
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Speaker 2 (1779134119387)
and there may be people who were not present at the deposition.
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Speaker 2 (1779134119387)
There may be people who were not part of the discovery process who
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Speaker 2 (1779134119387)
would benefit from having the opportunity to see the other
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Speaker 3 (1779134119387)
parties.
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Speaker 2 (1779134119387)
attorneys are even more resistive than they were in the past
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Speaker 2 (1779134119387)
to joint sessions.
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Speaker 2 (1779134119387)
Again,
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Speaker 2 (1779134119387)
I think they find the process is too tedious for
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Speaker 2 (1779134119387)
them. They think they know what the other side is going to say.
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Speaker 2 (1779134119387)
They feel that it sets the conversation back,
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Speaker 2 (1779134119387)
and that may be because they've worked with mediators who didn't know
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Speaker 2 (1779134119387)
how to handle a joint session or facilitate a joint session.
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Speaker 2 (1779134119387)
I always want to know who's in the room,
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Speaker 2 (1779134119387)
who could benefit,
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Speaker 2 (1779134119387)
and what would be the benefit.
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Speaker 2 (1779134119387)
the specific benefit of a joint session.
1:48
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Speaker 2 (1779134119387)
There are some cases in highly complex business cases,
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Speaker 2 (1779134119387)
for instance,
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Speaker 2 (1779134119387)
where there are a lot of documents,
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Speaker 2 (1779134119387)
there might be forensic accounting issues,
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Speaker 2 (1779134119387)
there might be scientific issues,
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Speaker 2 (1779134119387)
there may be intellectual property issues
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Speaker 2 (1779134119387)
that are very dense,
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Speaker 2 (1779134119387)
that if the joint session is properly...
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Speaker 2 (1779134119387)
properly facilitate and I try to explain to the parties if it's properly facilitated
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Speaker 2 (1779134119387)
we can actually save an enormous amount of time rather than having
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Speaker 2 (1779134119387)
me just schlep a message back and forth and information that may be
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Speaker 2 (1779134119387)
very nuanced and may be better.
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Speaker 2 (1779134119387)
for them to deliver the information than have me deliver.
2:30
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Speaker 2 (1779134119387)
And we talk about that.
2:31
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Speaker 1 (1779134119387)
Many mornings they'll come in and say,
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Speaker 1 (1779134119387)
let's not have a comment session.
2:34
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Speaker 1 (1779134119387)
Let's just get in the room.
2:35
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Speaker 1 (1779134119387)
I've heard all of his crap.
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Speaker 1 (1779134119387)
He's heard all of mine.
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Speaker 1 (1779134119387)
We're like an old married couple.
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Speaker 1 (1779134119387)
We don't want to talk to each other anymore.
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Speaker 1 (1779134119387)
We just want to find out if we can make a deal or not.
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Speaker 1 (1779134119387)
And those of us who've been doing this a long time know that if you
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Speaker 1 (1779134119387)
just start out without a warm -up,
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Speaker 1 (1779134119387)
it usually is unsuccessful.
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Speaker 1 (1779134119387)
And so some softening,
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Speaker 1 (1779134119387)
some, at least I found,
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Speaker 1 (1779134119387)
topic that's safe to talk about,
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Speaker 1 (1779134119387)
and then some area that has nothing to do with the controversy
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Speaker 1 (1779134119387)
in the case to talk about,
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Speaker 1 (1779134119387)
that humanizes people and begins to open up the avenues
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Speaker 1 (1779134119387)
for resolution,
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Speaker 1 (1779134119387)
are critical.
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Speaker 1 (1779134119387)
with some few exceptions,
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Speaker 1 (1779134119387)
insist on a common session,
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Speaker 1 (1779134119387)
always have the parties introduce themselves,
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Speaker 1 (1779134119387)
always have them tell us a little bit about themselves.
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Speaker 1 (1779134119387)
People like to talk about themselves,
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Speaker 1 (1779134119387)
especially on safe terms.
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Speaker 1 (1779134119387)
So you have to force them.
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Speaker 1 (1779134119387)
The lawyers don't want to,
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Speaker 1 (1779134119387)
they're not comfortable in that.
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Speaker 1 (1779134119387)
The age -old story,
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Speaker 1 (1779134119387)
they're just going to tick each other off.
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Speaker 1 (1779134119387)
They don't like each other.
3:39
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Speaker 1 (1779134119387)
You're going to make it worse.
3:41
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Speaker 1 (1779134119387)
As though if we just go into private session,
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Speaker 1 (1779134119387)
And you've been there,
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Speaker 1 (1779134119387)
the bouncing,
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Speaker 1 (1779134119387)
what I call mediator ping pong,
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Speaker 1 (1779134119387)
bouncing back and forth in the rooms while they tell you how horrible the other side
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Speaker 1 (1779134119387)
is and what awful people they are and how they lie.
3:55
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Speaker 1 (1779134119387)
And somehow the idea is if you get them together,
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Speaker 1 (1779134119387)
they're going to not like each other or it's going to be worse.
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Speaker 1 (1779134119387)
How could it be worse?
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Speaker 1 (1779134119387)
They want to kill each other.
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Speaker 1 (1779134119387)
And so I think I
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Speaker 1 (1779134119387)
use the mediator license as much as possible.
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Speaker 1 (1779134119387)
My concession to them.
4:13
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Speaker 1 (1779134119387)
And I give this as a tip to some where both lawyers call up and say,
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Speaker 1 (1779134119387)
we don't want a common session.
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Speaker 1 (1779134119387)
Our client doesn't want to meet with them and so on.
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Speaker 1 (1779134119387)
Is to say to them,
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Speaker 1 (1779134119387)
OK, I'll tell you what I'll do.
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Speaker 1 (1779134119387)
I'm going to do a timed reconnaissance session with
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Speaker 1 (1779134119387)
each side before I go in
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Speaker 1 (1779134119387)
and have a common session.
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Speaker 1 (1779134119387)
And I want to hear a little bit about it.
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Speaker 1 (1779134119387)
But it's going to be timed.
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Speaker 1 (1779134119387)
No more than 30 minutes.
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Speaker 1 (1779134119387)
And I'm going to tell the other side.
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Speaker 1 (1779134119387)
and where you can load up if you want to and tell me whatever it is.
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Speaker 1 (1779134119387)
And then I'm going to bring the parties together to explain the rules and hopefully
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Speaker 1 (1779134119387)
out of you I'm going to get some constructive thoughts about what you think will work and so
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Speaker 1 (1779134119387)
that I'll have something to talk about.
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Speaker 1 (1779134119387)
And that I sometimes do,
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Speaker 1 (1779134119387)
which is to not force a common session and to give them that
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Speaker 1 (1779134119387)
concession.
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Speaker 1 (1779134119387)
But I always end up back.
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Speaker 1 (1779134119387)
almost inevitably in some common session.
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Speaker 1 (1779134119387)
And to this day,
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Speaker 1 (1779134119387)
despite my many people who would
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Speaker 1 (1779134119387)
argue with me,
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Speaker 1 (1779134119387)
I've never had a common session that was harmful.
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