A mediator is most effective when he or she understands what is driving a dispute. Knowing what the plaintiff is demanding, or what the defendant is offering, is one thing. Knowing why a party is taking that position is something else.
Of course, a good mediator will draw out the parties’ interests through careful questioning and attentive listening during the mediation session itself. The parties’ written submissions also help. There is another tool, however, that is not as widely used: a separate telephone conference between the mediator and each side’s attorney before the mediation session itself.
While some mediators conduct a joint pre-mediation conference with both attorneys together to discuss logistics, having separate sessions allows each attorney to say things that he or she may not wish to reveal in front of the other side. A pre-mediation session also allows each attorney to provide information about the dynamics of the conflict that he or she may not feel comfortable putting in the mediation statement, or may be unwilling to say at the mediation in front of his or her client. For instance, an attorney can shed light on the client’s lack of sophistication with litigation, unrealistic expectations, emotional obstacles, ancillary financial pressures, and the like. The unilateral conference also gives the mediator an opportunity to ask clarifying questions about issues raised in the attorney’s written submission, rather than spending time during the mediation session itself, so that everyone can “hit the ground running.”
In court, an attorney cannot discuss a case with the judge without the opposing counsel present. In mediation, ex parte communication (at least in most jurisdictions) is the norm. Of course, a mediator is not a fact-finder or decision-maker, but he has an important role in determining whether a dispute is resolved. Why not take full opportunity to ensure the mediator understands the case?
If your mediator does not offer a pre-mediation conference, consider requesting one.