There’s an old joke that goes something like this:  A man comes upon another man who is repeatedly hitting his thumb with a hammer.  When asked why he’s beating his thumb to a pulp, the man with the hammer replies, “Because it feels so good when I stop!”   While this may not be a shining example of humor, I think there’s a lesson in the joke that lends itself to mediation.

Recently, my colleague Kimberly Sands posted an entry to this blog titled, “In Praise of the Opening Statement”.  I agree wholeheartedly with her assessment of the importance of opening statements in mediation.  At the threshold, though, mediators sometimes have to convince the parties and their counsel of the wisdom of sitting together in one room, if only for a little while.

All too often, counsel for one party will tell me something like, “These folks just hate each other.  I don’t see anything to be gained by having them in the same room together.  Let’s just get into caucus right away.”  Sometimes, opposing counsel agrees with that assessment.  At other times, however, opposing counsel wants the opportunity to present his or her client’s case to the other client.  How should the mediator resolve this preliminary dispute over how to go about mediating?

If nobody is willing to get together for a joint session, then I have to find another way to fulfill my obligations to discuss such matters as mediator neutrality and impartiality, the voluntary nature of settlement, and the confidential nature of mediation communications.  But if one lawyer or another wants to make opening comments about the case in the presence of the opposing client, then that is what should happen, even if the presenting lawyer’s client doesn’t come into the room.  But frankly, though it may be beyond my control, I want that client in the room.  Why?

Absent concerns of physical violence, I would submit that there is great value to the parties facing one another during an initial joint session.  One cannot fully appreciate how good the absence of conflict feels until one has had a healthy dose of conflict.  Consider these (admittedly imperfect) analogies.  People who have never had migraine headaches cannot truly appreciate how great it is not to have one.  Someone who has appendicitis, however, appreciates the subsiding and eventual absence of pain once the offending organ is removed.  The happiness of a couple’s marriage may not be at the forefront of their thoughts until they have an argument.

If the clients don’t see each other at mediation, and don’t hear about the dispute from the opposing attorneys, they have a luxury they certainly will not have at trial.  More importantly, though, they will not feel the immediate discomfort of conflict as acutely as perhaps they should.  At the mediation table, the sight of the opposing client is likely a reminder of the pain, stress, and expense the underlying dispute has caused.  The joint session may cause the clients some “pain”, but it may also make them more appreciative of the absence of pain, i.e. the absence of conflict and a resolution of the dispute.  Or, in the words of the man with the hammer, it will feel so good when they stop.

Michael S. Orfinger
Shareholder, Upchurch Watson White & Max

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