MEDIATION: THE CHANGING NATURE OF THE PLENARY SESSION
Whether voluntary or mandatory, mediation is now a common occurrence in estate and trust litigation. Much has been written and blogged on the subject. I therefore thought it worthwhile to comment on the changing nature of the plenary session from a practioner’s point of view.
Traditionally, the plenary session brought the parties and their counsel together at the outset of the mediation so that the mediator could review the ground rules or “rules of engagement”, discuss the benefits of reaching a mediated settlement, and touch upon role of the mediator during the process. Counsel were then invited to present their client’s case usually adopting an adversarial stance and focusing on a “rights-based” approach to the mediation. Next up were clients who, understandably, often became angry or confrontational.
However, plenary sessions have largely changed. It is now widely recognized that allowing counsel and parties to make opening statements only inflames the situation and places the focus on what divides the parties rather than what unites them. Consequently, the mediation is off to a poor start and the mediator spends considerable energy unwinding the newly minted ill-will.
Given the above, a plenary session should, in my view, consist of the following:
· A brief discussion by the mediator of his/her role as well as the ground rules for the day;
· An emphasis on why it is in the parties’ interest to resolve the dispute at the mediation rather than later on within the court process;
· An overview presented by the mediator of the outstanding issues and disputed facts; and
· Constrained input from the parties.
In my experience, when a mediator takes the lead during the plenary session and canvases the legal and factual issues that divide the parties, while being sensitive to the emotional context in which the dispute is being waged, the parties are more likely to focus their energy on reaching a settlement. In the end, raw emotion does not simply trump common-sense.
Finally, it is worth noting that the vast majority of legal disputes settle before trial. Furthermore, statistics indicate that a settlement, or partial settlement, occurs more often than not at mediation. Viva la mediation.