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handshake deal settlement good faithThe joint session of the mediation, where disputing parties speak directly to one another, is often considered the best opportunity for the parties to engage in a realistic discussion of the strengths and weaknesses of their case. However, joint sessions don’t always end up with parties finding common ground. In many cases, the mediation process is often sabotaged during the joint session where a dispute arises with respect to communications between counsel prior to the mediation. These critical communications are usually informal, never reduced to writing and often lead to misunderstanding and mistrust between parties. In other words, the joint session could have the adverse effect of driving parties further apart. As a result, the mediator—in an attempt to move the resolution process forward—redirects valuable time away from the mediation in order to smooth ruffled feathers and to help to resolve an argument about what was represented prior to the mediation.

To avoid this scenario, the parties should always confirm in writing any understanding upon which their agreement to mediate is based, well in advance of the mediation. Further, it should be mutually agreed upon that the parties will disclose any change of circumstances that will affect that understanding prior to the mediation. The purpose is twofold: It will allow counsel to reevaluate their clients’ settlement positions and proceed with the mediation, or adjourn the mediation to allow parties additional time to do so.

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