After introductions, the joint session generally starts off with a narration by the mediator, directed primarily to the plaintiff, explaining how the mediation will transpire.  Do not show impatience with the length of the mediator’s presentation.  Despite the fact you’ve heard it a hundred times before, it is a significant part of the proceedings and must be accomplished.  Importantly, it gives plaintiff time to relax and acclimate herself to the process. 

Evaluate the mediator. Observe his knowledge of the case, thoroughness of preparation, toleration for details, etc.  Evaluate whether he likes or dislikes dealing with issues by how he approaches them.  If he likes dealing with them he will encourage them being expressed;  if not, he will try to dissuade their discussion.  This trait generally tells you how much you can depend upon him to convey your arguments during negotiations.  Mediators who dislike discussing issues generally dislike conveying arguments; they just want to talk money.  You need to know this.  If he strikes you as not liking to discuss the issues, you will have to adjust your own presentation during the joint session to assure all the essential arguments are heard, since they may not be conveyed effectively during negotiations.

Evaluate the mediator’s patience.  If you have a plaintiff who needs to vent, the mediator must have a good deal of patience.  If negotiations fail, and you believe the mediator did not have sufficient patience, do what you can to get a different mediator for the next mediation.

Evaluate the mediator’s emotional sensitivity.  Does he have the capacity to sense and respond to the plaintiff’s emotions?  If you have an emotional plaintiff, this will be a very important trait for the mediator to possess.  If the mediator is devoid of such sensitivity, you need to know that, as you will need to know how much you can depend on the validity of what the mediator tells you about the plaintiff during negotiations.

Throughout the joint session much can be learned about the mediator from the quality of questions he asks, so listen carefully. 

You will need to know as much as possible about the mediator in order to know how much you can trust him, which techniques he employs, and to anticipate what tactics he may use to get the case settled.  Remember, he is not on your side, and he is not there to save you money.  The more you know about him and his tactics, the better able you will be to utilize him to your advantage.

Robert J. Conover

30 Years in Claims and Litigation Management

Independent Mediation Negotiator  &  Claims Representative