This is the eighth article in this series on mediation advocacy. The seventh article, published July 25, discussed the strategic uses of pre-mediation submissions. The article continued a scenario in which the parties, Widgetronics and DesignMetrics, entered into a contract containing a dispute resolution clause and became embroiled in a dispute over Widgetronics’ alleged wrongful termination of the contract. During the preliminary conference call with the mediator, the parties and mediator formulated a framework for the mediation session, including the initial joint session. This article provides tips on effective advocacy for that initial session.
Most mediations begin with a joint session in which the parties meet with the mediator. During this session, the mediator typically makes introductory remarks about the mediation process and covers basic ground rules. The parties may deliver opening statements, and then the parties and mediator may ask questions of one another. A common practice is that, after this session, the mediator meets separately with each party in a private caucus, shuttling back and forth between them multiple times during the day. As appropriate, the mediator may convene a session with only the attorneys or principals, or hold another joint session with all participants. The mediation session continues until the parties have reached an agreement, decided mediation is no longer worth pursuing or decided to break and resume the next day or another time.
