I hope your Holidays were wonderful, and that your New Year is already getting off to a great start!

As we begin the New Year together, it’s a good time to reflect on the importance of starting the year off with a sense of optimism and positivity for what lies ahead for us in 2023. It’s also a good time to think about the importance of getting off to a great start in mediation, and to lay a solid foundation for resolution. Two important ways come to mind:

  • Talk with me. As you know from having worked with me in the past, I’m a firm believer in the importance of what happens well before we actually come together in the mediation session. (Whoever came up with the phrase, “Mediation is a process, not an event,” was spot-on.) That’s why I always reach out to counsel, well in advance of mediation, to make sure that we’ll be ready to hit the ground running when we get together. In my pre-mediation conferences with counsel (which are usually with each side separately, at least at first), I cover such issues as:
    • Is there any additional information or discovery you need in order for your clients to make informed settlement decisions at mediation? If the answer is yes, I can assist in obtaining that information and in resolving any discovery disputes.
    • Is there insurance coverage for any of the claims, and if so, are there any coverage issues that need to be resolved or at least accounted for in the resolution process?  
    • Will all essential decision-makers (including the parties, spouses, business partners, and insurance claims representatives) participate in the mediation session?
    • Will a translator be needed for any mediation participant?
    • Will a joint session be appropriate for the mediation?
    • Have there been any past settlement efforts?
    • Are there any impediments to resolution (such as personality conflicts) that would be helpful for me to know?
    • Is there anything that might be added to a monetary settlement that might serve to “expand the pie” that will be divided between the parties?
  • Get off on the right foot. As you also know from having worked with me in the past, I firmly believe that, except in those rare circumstances when it can be like pouring kerosene on an open flame, there is almost always something to be gained by bringing the parties together in a joint session, facilitated by me to keep things moving forward constructively, and after having received everyone’s commitment to the only rule that I impose on the parties – the “Golden Rule” to treat each other the way that you would expect to be treated yourself. That said, I conduct a joint session only with everyone’s consent, and, importantly, only after I have met with each side separately in initial private caucuses. Why? Despite the fact that the whole point of mediation is for the parties to put aside their differences, resolve the dispute, and move on with their lives, it is also to some extent an adversary process. At the beginning of the mediation session it’s just human nature for the participants to have their guard up. And that’s especially true for the parties themselves, who find themselves in an unfamiliar, uncomfortable, and anxiety-provoking setting. It’s easy for the natural “fight or flight” response to kick in – which in turn means that the parties may “listen” to what is said, without actually “hearing” (i.e., understanding) what’s said due to being overwhelmed by fear. And without being able to actually hear what’s said, it can be next to impossible for the parties to make rational, informed, settlement decisions. To overcome that hurdle, my initial, separate sessions with each side give the parties an opportunity to get the “butterflies out of their stomachs” and get comfortable with the process, and with me. That way, when we then get together in joint session, the parties are better prepared to actually hear and understand what everyone has to say.

As always, I remain dedicated to providing the best possible ADR services in the format that best suits the parties’ needs, whether through Virtual Dispute Resolution or in person when it is safe to do so. I look forward to working with you again.

Best regards and stay safe,

Phil Diamond