My favorite form of mediation is the single-day, knock-down-drag-out session that ends with an inked agreement and handshakes by weary but relieved participants on the dot of 5 o’clock. Maybe that’s everybody’s preference, but it just doesn’t work for every case, for a variety of reasons.
At a planning session for an upcoming (April 11) program sponsored by the Connecticut Trial Lawyer’s Civil Justice Foundation, titled “Mediation/Settlement: New Strategies, New Opportunities,” the lawyers and judges who will be participating had some thoughtful things to say about mediations that don’t achieve settlement at the first session. Lawyers handling large claims or claims with complicated constellations of parties or fact patterns are regarding mediation as a process rather than an event. They speak of using the first session as a way to learn about how the opposing side sees the case and to try to impose their different view of the merit of the claims and of the appeal that their framing of the issues could have to the jury, court or arbitrator if the case were to go to adjudication. They also find that they learn about weaknesses in their cases that they need to discuss with their clients away from the negotiating table, since many clients are not able to make instant adjustments to their views about risks and outcomes.
