Why do insurers spend money fighting claims rather than paying them? (6/30/08)
Geoff Sharp

A recent study by Prof. Jeffrey O'Connell of the University of Virginia School of Law and Patricia Born of California State University-Northridge analyzed settlements of personal injury and defective product cases against companies between 1988 and 2004 in Texas and Florida. Their study was published recently in the Columbia Business Law Review.

The report tested an "early offers" system, which encourages businesses to promptly pay injured parties their essential losses: out-of-pocket medical expenses and wage loss.

Such a plan would reduce claim costs for general liability claims - by an average of $114,000 per claim and by $670,000 per claim for severe injuries.

The savings come mainly from eliminating non-economic damages, such as pain and suffering, and from reducing legal fees.

The early offers regime is projected to save an average of $32,000 in legal expenses in all cases, and about $211,000 in severe injury cases [read more]

Independence and Interdependence: The Good Side of Court-ordered Mediations (6/30/08)
Jan Frankel Schau

This week marks the largest settlement I've ever "brokered" and the longest mediation over which I've presided thus far. A month ago, a compelling wrongful death and bad faith case came before me at the strong urgency of the Court. The case had a trial date of June 30, 2008. It was mediated back in 2005 (unsuccessfully and by a different mediator) and then had proceeded to a Motion for Summary Judgment which was granted in favor of the defendant and later reversed on appeal. While the mediation in May got a lot closer, the parties were still millions of dollars apart. Then came the daily phone calls, the true "negotiation", and the framing, re-framing, evaluating, re-evaluating for a full month. After one such conversation, the Defense lawyer advised me that he was instructed to put out his top dollar offer in a statutory offer. The negotiation continued. Last week, on the morning of the Final Status Conference, the Plaintiffs accepted the Statutory Offer which had been submitted 4 days before. While I take some credit for working with both parties to get to a number that would ultimately settle the case, I'm quite clear that the timing created by the Court (through both a trial date and a Statutory Offer) allowed the parties to finally end the negotiation and settle the case.

In another case, I was the presiding Arbitrator. The parties had spent hours and hours disputing and debating the claims, the damages and the discovery in advance. Finally, when they came before me last week, my preliminary ruling was to overrule the Plaintiff's objection to the Statutory Offer being used in an arbitration. Then I simply queried: "Would the parties like to take a few minutes to discuss possible settlement in light of that ruling?" Within 2 hours, that case also settled. It was only the urgency created by the actual "trial" (there were about 6 witnesses and an interpreter in the Office prepared to testify that day), that facilitated that settlement. The Court's process (allowing a Statutory Offer to create the threat that the Defendants may have been able to recover their costs if the Arbitration favored their side) facilitated a serious negotiation which ultimately settled the case without the full evidentiary hearing.

My conclusion is that in both cases, the Court process had the paradoxical effect of urging the "independence" of settling these two cases outside the Courthouse. I thought it fitting, on this week of Independence Day, to draw these analogies. Independence is a prize to be cherished, but our partnership with the institutions and organizations that protect and demand accountability sure help to foster true independence!

Now back to last week's comments. Many of you were confused by the "apology"--so let me explain. After commenting upon the "debate" which was reported by the Daily Journal before the L.A. County Bar Association, I heard privately from Charles Parselle, who demanded a correction and apology. Since I had not correctly or completely reported the event, I simply offered the apology that Charles had asked me to insert. I agree that it should not be a debate, and I had no intention of entering into the debate, but rather commenting upon the sad fact that the matter had to be debated in that way.

I wish you all a Happy Independence Day--but one that is mindful that independence cannot be celebrated without interdependence in its shadows.

Attendance (6/23/08)
Phyllis Pollack

       More times than not, in order for the parties to reach a resolution at mediation, they must attend the mediation. While this may seem axiomatic, in reality, not all of the necessary parties always show up at a mediation. In most instances where a party does not attend in person, it is difficult, if not impossible, to reach a resolution. Unsurprisingly, the matter does not settle. 

       This simple fact was the subject of a motion for sanctions before the Third Appellate District in the California Court of Appeal. In Campagnone v. Enjoyable Pools & Spas Service & Repairs, Inc. (C055050), the court denied the motion for sanctions solely because the applicable local rule was not explicit enough to put the defaulting party on notice of its obligation. However, the court admonished the parties about the value and importance of mediation.

       In this case, plaintiff Robert Campagnone suffered severe injuries when the filter in his swimming pool exploded. After a jury awarded him $2.4 million in damages against both the manufacturer of the filter, Sta-Rite, and the seller and installer of the filter, Enjoyable Pools, the defendants appealed.

       As part of its process, the appellate court offers mediation (‘court-ordered” mediation) in which the first four (4) hours of the mediation session are furnished to the parties at no cost. If the parties wish to continue with the session, financial arrangements must be made with the mediator.

       The parties took advantage of the “court-ordered” mediation. However, Sta-rite did not notify its excess insurer (National Union) of the mediation session much less that its attendance was mandatory.

       Well. . . the matter did not settle at mediation. So, plaintiff filed a motion for sanctions against Sta-Rite, its counsel and its excess insurer seeking attorney’s fees, mediation fees and the expenses of participating in the mediation process because of Sta-Rite’s failure to notify the excess insurer of the mediation and the latter’s failure to attend.

       In its discussion on the virtues of mediation, the court noted that its court program had an over 50% settlement rate which occurred “. . .prior to the preparation of the appellate record, briefing and oral argument. By doing so, [the parties] saved substantial time and expense, achieved a result acceptable to each party, and moved on with their lives or business rather than having prolonged the litigation.” (Id. at 2).

       The court then stated the obvious:
     

      “For mediation to be effective, the parties must attend all mediation sessions in person, with full settlement authority. And when potential insurance coverage may apply, a representative of a party’s insurance carrier must attend all mediation sessions in person, with full settlement authority.” (Id.).

      In sum, the court, in principle, agreed with plaintiff but declined to order the sanctions as the local rule in point did not put Sta-Rite on explicit notice of what was required. However, the court did admonish that henceforth it would award such sanctions. It stated that “. . . at a minimum, a reasonable sanction is the cost of their wasted time for a period of four hours . . . plus the court’s cost to process the sanction motion.” (Id. at 6-7).

       In this way, the court is enforcing the obvious:

      “. . .It is self evident that for a mediation to succeed, each of them must attend every mediation session in full, with full settlement authority.”
(Id. at 6).

       I devote this blog to this point because although this simple fact may seem obvious, I have had too many mediations in which it is “inconvenient” for a party to appear in person such that the party either does not appear at all or simply appears by telephone – and then wonders why the matter did not settle. This court opinion explains the “why.”

       . . . Just something to think about.

Court Ordered Mediations: Is it Time to Be Honest about their Efficacy? (6/23/08)
Jan Frankel Schau

There is an on-going controversy in Los Angeles County about "court ordered" free mediations. On the one hand, the ADR Committee has steadfastly maintained that Los Angeles is under a specific State requirement to make pro bono mediation available in all cases. On the other hand, mediators have experienced frustration in both the challenge of settling these "ordered" cases and the challenge of building a private practice when all cases are afforded an opportunity to mediate in L.A. County for free. This all came to a head this week at a meeting of the Los Angeles County Bar Association.

According to the Los Angeles Daily Journal article which covered the debate: "Though the debate was civil, Bendix lashed out at the two mediators in a hallway after the meeting. She told Parselle she thought he had been "disingenuous" in the debate when he said low-income litigants would still be able to get free mediation through the court's fee-waiver process if the resolution passed. Bendix told him that his position reflected a "profound misunderstanding" of the fee-waiver process. "I don't want to participate in these discussions with you if you're going to be dishonest," Bendix said sharply. "This is so wrong."

*Let me take this opportunity to apologize to Charles Parselle for suggesting or implying that he made any accusatory or
untoward remarks. On the contrary, the Daily Journal article made it very clear that he was quite puzzled by what had just happened. I have had the opportunity to speak with Mr. Parselle, and he confirms the accuracy of the Journal report and add that in response to the judge's remarks to him, he did not make any response other than to express his puzzlement and repeat that the legislative amendment contemplates that free mediation should remain available to indigent litigants who have obtained a fee-waiver from the court."

Although the Southern California Mediation Association officially took no position on the pending legislative changes when President Nikki Tolt was asked by the reporter for the Daily Journal, the position articulated by Mr. Parselle at this meeting was generally supported by the SCMA last year, when I was the organization's President. I was not present for the LACBA presentation, but I am very familiar with this longstanding dispute and agree personally (and as Past President of SCMA) that change is needed and many cases are "ordered" to mediation and offered free services when the litigants could well afford to pay a mediator for her work. What's more, it is my personal opinion that this would result in higher settlement rates and actually be of greater service to both the court and the litigants!

This week I had the opportunity to co-mediate a case with a colleague who has not accepted a "court-ordered/free" case for five years. He began the day with the following reassurance to each side: "I think this is going to be the day we get this done. It really needs to happen today"...(and to one side: "Amazing things happen between 5 and 6 P.M."). Indeed, the case settled, although it was nearly 7:30 P.M. At its conclusion, he felt triumphant, relieved and tired. I felt something different, after the Plaintiff, who had gotten an excellent settlement, would barely shake my hand. I was left wondering whether we had done justice in achieving the litigators' goal of settling the case that day, but left the plaintiff himself extremely unsatisfied. On the following day, my colleague reminded me cheerfully: "Jan, that's why they hire us. They want us to settle every case, and in the main, I do. It's in at 10:00 A.M. and out with a settlement by 6:00 P.M."

It's taken me several days to process this, but I offer this observation. In court-ordered cases, the parties have no expectation that the mediation date is the day they will settle the case. Indeed, I often begin those hearings by inquiring: "Why are you here?" I do this so that both sides "buy in" to the notion that one possible outcome is settlement, but typically, we all know that there are many other possible outcomes--further discovery, further negotiation or a future settlement date. So it is no surprise that the statistics show that private cases are settled at an 80-90% rate, whereas court-ordered ones are barely more than 50/50.

I'm not so sure it's about who pays for the mediation, but if the parties (and their attorneys) are given free choice and mediation is truly voluntary, chances are greatly improved that the date they choose will be the date each party is ready to resolve the case.

Wouldn't that be a better use of resources for all concerned?

The Right to Trial By Jury and Mediation as Its Alternative (6/23/08)
Victoria Pynchon

There is no principle I hold more dear than the rule of law.  I've written before about some critics' contention that our own government has turned away from the rule of law here.  Some of those  critics go so far as to accuse our government of waging war on the rule of law -- calling its strategy "lawfare."

I've also written before about critcisms levelled against ADR practices as threats to the principle that all men, women, and institutions will be judged by the same gender-blind, color-blind, nationality-blind, disability-blind (etc.) rules of law. 

There are those who believe that mediation -- which is practiced without rules, best practices or even a common theoretical basis --  permits mediators -- who are primarily over-40 white men -- to unfairly pressure litigants to settle their lawsuits against their better judgment.  There are further charges that mediation re-injects favortism and prejudice back into a system that spent most of the latter half of the 20th century ridding itself of.  

I take these criticisms very very seriously, repeating throughout any mediation session my opening assertion that my role is to present the parties with choices and to faciliate a settlement if they believe it may be better alternative to continued litigation, not to hustle them away from their right to a jury trial.  

I would be far more successful in being "neutral" about proceeding to a jury trial if there were an easier, less costly, and speedier way to bring a dispute before a jury.  We have, lamentably, permitted our cherished rule of law to become so procedurally encrusted that it sometimes seems like no option at all -- at least not an option available to all but the wealthy or those represented by lawyers willing to accept a contingent fee.

All of this troubles me.  I invite comment at the same time that I provide the thoughts of some of our greatest statesmen and jurists about the right to trial by jury.      

George Washington

"There was not a member of the Constitutional Convention who had the least objection to what is contended for by the advocates for a Bill of Rights and trial by jury." (1788)

John Adams 

"Representative government and trial by jury are the heart and lungs of liberty. Without them we have no other fortification against being ridden like horses, fleeced like sheep, worked like cattle and fed and clothed like swine and hounds." (1774)

Thomas Jefferson 

"I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution." (1788)

"Trial by jury is part of that bright constellation which has gone before us and guided our steps through an age of revolution and reformation." (1801)

"The wisdom of our sages and the blood of our heroes has been devoted to the attainment of trial by jury. It should be the creed of our political faith." (1801)

James Madison 
"Trial by jury in civil cases is as essential to secure the liberty of the people as any one of the pre-existent rights of nature." (1789)

John Quincy Adams 

"The struggle for American independence was for chartered rights, for English liberties, for trial by jury, habeas corpus and Magna Carta." (1839)

Patrick Henry of Virginia [Patriot who said "Give me liberty or give me death!"]
"Trial by jury is the best appendage of freedom by which our ancestors have secured their lives and property. I hope we shall never be induced to part with that excellent mode of trial." (1788)

Alexander Hamilton 

"The friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury; the former regard it as a valuable safeguard to liberty; the latter represent it as the very palladium of free government." (1788)

Daniel Webster

"The protection of life and property, habeas corpus, trial by jury, the right of an open trial, these are principles of public liberty existing in the best form in the republican institutions of this country." (1848)

Judge Stephen Reinhardt 

"Our constitutional right to trial by jury does not turn on the political mood of the moment, the outcome of cost/benefit analyses or the results of economic or fiscal calculations. There is no price tag on the continued existence of the civil jury system, or any other constitutionally-provided right." (1986)

David Hume 

"Trial by jury is the best institution calculated for the preservation of liberty and the administration of justice that was ever devised by the wit of man." (1762)

Judge William Bryant [First African-American federal district court judge in D.C]

"If it weren't for lawyers, I'd still be three-fifths of a man." (2004)

Justice William O. Douglas

"The Massachusetts Body of Liberties was a new Magna Carta. It contained many of the seeds of the civil liberties which today distinguish us from the totalitarian systems, including the right to trial by jury." (1954)

Justice Hugo Black

"Our duty to preserve the Seventh Amendment is a matter of high Constitutional importance. The founders of our country thought that trial by civil jury was an essential bulwark of civil liberty and it must be scrupulously safeguarded." (1939, 1943)

Justice Ward Hunt

"Twelve jurors know more of the common affairs of life than does one man, and they can draw wiser and safer conclusions than a single judge." (1873)

Quotations excerpted from In Defense of Trial by Jury: Vols. I and II by the American Jury Trial Foundation (1993) and copied verbatim and in their entirety from the web site of the American Association of Justice (i.e., the American Trial Lawyers Association).

California Court Tells Insurers with Potential Coverage to Attend Mediation in Person (6/18/08)
Keith Seat

Noting the benefits of appellate mediation and the desirability of participants attending in person, a California appellate court warned insurers in Campagnone v. Enjoyable Pools & Spas that even the potential of coverage requires a representative with full settlement authority to attend court-ordered appellate mediations in person, unless excused in writing by the mediator. Further, the court warned parties and counsel that they may also face sanctions if they fail to notify insurers with potential coverage about appellate mediations. The court noted that California’s strict mediation confidentiality provisions prevent mediators from disclosing whether anyone fails to attend, but that an aggrieved party may do so in seeking sanctions from the court. The court withheld sanctions in this case only because no previous opinion had spelled out these requirements, even though the insurer was only liable for amounts in excess of $3 million and the judgment in the trial court was $2.4 million.

Campagnone v. Enjoyable Pools & Spas, No. C055050 (Cal. App.3d Dist., May 30, 2008)

Caseload of Oklahoma Supreme Court Reduced by Mediation (6/18/08)
Keith Seat

The total number of cases handled by the Oklahoma Supreme Court is down 28% from 1999 to 2006, with the number of written opinions dropping from 250 a year in 2000 to only 99 in 2006. The Chief Justice attributes the decline to mediation, as well as legislative reforms and the rising cost of litigation.

Insurance Journal (June 10, 2008)

An Unenforceable Settlement (6/17/08)
Phyllis Pollack

       My mediation practice consists of cases filed in court (or litigated cases). Often times, the parties settle using an installment payment plan and a stipulated judgment. For example, defendant agrees to pay x amount a month, and if she defaults, plaintiff may file a stipulated judgment for y amount which is often a higher amount than the agreed upon settlement amount less credit for payments made.

       In Greentree Financial Group, Inc. v. Execute Sports, Inc. (Case No. G039326),(greentree-financial)  Division Three of the Fourth Appellate District of the California Court of Appeal held that such a practice may be illegal as constituting an unenforceable penalty.

       In this case, Greentree sued Execute Sports, Inc. (“ESI”) for breach of contract claiming $45,000 in damages. Just before trial, the parties settled. ESI agreed to pay $20,000 in two installments. It also signed a stipulation for entry of judgment memorializing this installment payment plan. The stipulation also provided that if ESI failed to make one of the payments, Greentree would be entitled to have judgment entered for all of the amounts sought in the complaint including interest, attorney’s fees and costs, less any amounts already paid.
 

      As may be surmised, ESI defaulted: it failed to make the first installment payment. Greentree then sought to have judgment entered for the $45,000 in damages as claimed in the complaint, plus $13,912.50 in prejudgment interest, plus $2,000 in attorney’s fees and $320 in costs, for a total of $61,232.50. Although ESI opposed this, claiming it to be excessive, the trial court entered the judgment.

       ESI appealed claiming that the stipulated judgment constituted the enforcement of an illegal penalty. In contrast, Greentree urged that the amount was a valid liquidated damages provision in a contract between the parties.

       The appellate court agreed with ESI, noting that the breach to be analyzed, is not of the underlying contract that caused the lawsuit, but of the stipulation or settlement agreement. (Id. at 4). That agreement called for a payment of $20,000. In light of that, the court queried: does a penalty of $61,232.50 (or three times that amount) bear a reasonable relationship to the possible actual damages that could flow from breaching this agreement? The appellate court answered “No!”
 

      The appellate court found that Greentree had offered no evidence of what damages would flow from ESI’s failure to pay the $20,000 as promised. Typically, such damages would include interest at the prevailing rate. (Id. at 5). But here, the “damages” were not interest and late fees, etc. but triple the amount.

       As the court explained:

      “Here, the judgment would have been enforceable if it had been designed to encourage ESI to make its settlement payments on time, and to compensate Greentree for its loss of use of the money plus its reasonable costs in pursuing the payment. The amount of the judgment, which awarded  Greentree approximately $40,000 more than the settlement amount, does not merely compensate Greentree – it rewards Greentree by penalizing  ESI. . . .

      “If the sum extracted from the borrower is designed to exceed substantially the damages suffered by the lender, the provision for the additional sum, whatever its label, is an invalid attempt to impose a penalty as its primary purpose is to compel prompt payment through the threat of imposition of charges bearing little or no relationship to the amount of the actual loss incurred by the lender.” (Citation omitted)”. (Id. at 5).

 

       The appellate court reversed and remanded the matter to the trial court with directions to reduce the judgment against ESI to $20,000 plus post judgment interest and costs. (Id. at 8). Since the stipulation did not contain any provision for the award of attorney’s fees (i.e. $2,000) or a prejudgment interest (i.e. $13,912.50), these amounts could not be included in the judgment, as well.

       So. . .the next time you find yourself settling a case by using a stipulation to enter judgment upon default in installment payments, make sure that the default amount bears a reasonable relationship to the range of actual damages you or your client might suffer as a result of a breach of the settlement agreement and not the underlying agreement. Otherwise, the default judgment amount may not be enforceable.

       . . . Just something to think about.

Is Collaborative Negotiation an Oxymoron? Should Litigators Care? (6/17/08)
Victoria Pynchon

"No," to question no 1 says Clarke Ching of the software blog More Chili Please who is hosting this week's Carnival of Trust.  (Hat Tip to Chicago IP Litigation Blog)  And "yes" say I to question no. 2.

Ching cites us to Davis Anderson's post, "Stop Negotiating, Start Collaborating" in the Agile Management Blog, an article that was first published in the Cutter Journal. Ching says,

It's a very good article - important to anyone working in project work, software related or otherwise. I wonder if David was ... perhaps ... being a little deliberately provocative with his title. Can we ever stop negotiating while we've got people involved? I prefer to think that there are two different ways of negotiating: as adversaries or as collaborators.

I agree with Ching but Anderson's post is not just a great read, but a provocative and stimulating one so I suggest you click on it and run right over there.  Not convinced?  Here's an excerpt:

Stop Negotiating! No really! Cut it out! Banish it from your thoughts, your actions and your organization. Refuse to negotiate. When you need to work with another department, group or team inside your organization, and you find yourself in negotiations to get what you need, just say “Enough!” And refuse to negotiate.

What is so bad about negotiation?

Negotiation implies that you have an internal market and a market implies that you need a contract between a supplier and a consumer of a product or service (usually a service in an IT or technology product company context). Markets and their contracts carry transaction costs [1] – one of those costs is negotiation. If you can replace your internal market with a collaborative network, you’ll gain an economic boost from what are known as the network externalities [2] of being in the network. Collaborative networks do away with the transaction costs associated with marketplaces - specifically in this case, the cost of negotiation.

Negotiation also implies that information is being hidden. The supplier is hiding their availability, or the cost of the job, or some information that might give the consumer an advantage. Our 20th Century education taught us that “information is power” and business schools teach negotiation emphasizing that leverage involves hiding information. It’s become second nature in business to assume hidden information and to probe for it during negotiations. Hence, consumers of your IT service naturally distrust your estimates or resource requests.

Let’s pause for a moment and reflect on that word advantage. Within your organization, why would any one group or team require an advantage over another? Doesn’t the organization have a set of common goals? And isn’t the organization supposed to be collaborating to realize those goals? What can obtaining an advantage over another group possibly have to do with collaboration?

If you are beginning to think that there ought not to be a position of advantage in a truly collaborative organization, you’re thinking along the right lines. Having an advantage and collaboration are incompatible. By implication then, information hiding is incompatible with collaboration. And negotiation ought to be unnecessary.

Trust is the essence of a highly collaborative organization.

My attorney readers, particularly the litigators will say -- sure, sure -- it's one thing to stop 'taking advantage' internally - but we are fighting a just cause here.   

Not to join the kum-by-ya crowd or anything like that, but if you can hold this thought in your mind for just a couple of minutes before rejecting it completely, it might take root and grow a small shoot of hope and desire inside of you.

Here it is:  we are all within the same "organization" -- that Big Blue Ball whose larger mammals happen to be threatened with extinction right now.  Being those larger mammals, don't we have a set of common goals?  And doesn't that set of common goals include maximizing the well-being of everyone on the economic food chain? 

We need workers to create the stuff business produces, both to create it while we brainstorm and to purchase it after the workers make it. That's at the bottom of the food chain.  Closer to the middle, we need higher paid workers to have disposable income to invest in business, either directly as partners or indirectly as shareholders.  At the top of the food chain, we need "competitors" to solve some of the complex business, manufacturing and information technology problems that our business -- be we MicroSoft or Apple or SmallTech just getting started in the garage down the street -- cannot solve. 

But what about people who infringe our patents, who steal our customers, who try to gobble up the market for themselves.  What about people who breach their contractual obligations?  What about the people who lie and cheat and steal?  We need to fight them in the civilized way we do now.  We need power to force them to disgorge the profits that rightfully belong to us and to pay for the damage our business has suffered as a result of their civil wrongdoing.

O.K.  Listen.  I just said -- hold this thought in your head for a minute before rejecting it out of hand. 

I'll be back to address that last set of questions soon.

Negotiating Conflict Denial and Avoidance with Geoff Sharp and Joe McMahon (6/17/08)
Victoria Pynchon

I'm tempted to just import Geoff Sharp's entire post on joint session vs. separate caucus mediation or, as Joe McMahon positions the split in current mediation practice in Moving Mediation Back to Its Historic Roots, "dialogue-based" v. "separation-based" practice.

That seems silly when I can simply link you to Geoff's post The Legal Community Has Learned to Accept Low Functioning Mediation.  

I will give you a few excerpts, though, both Geoff's own thoughts and those of McMahon quoted by him (thanks to our mutual friend Stephanie West Allen at Idealawg).

If denial and avoidance are thought to be the most universal responses to conflict, it is important to consider whether separation-based mediation merely plays into and enables such a response to conflict. If so, it is time to evaluate whether mediation and facilitation were really intended to provide support for such denial...

Support for the market model of mediation ("the market knows what it needs and what it needs is the settlement conference") is claimed in the high settlement rates in commercial settlement conferences. However, a high percentage of civil cases always have settled, even long before mediation was in vogue...

McMahon asks of mediators; 'are you fully satisfied with the quality of dialogue among conflicting parties in the mediations in which you participate?'

What a wonderful question! In my case however, only occasionally.

As McMahon says, 'By broadly considering conflict and mediation, it may be possible... to move these processes back toward their historic roots—that being processes based on parties telling their stories in face-to-face dialogue aided by a mediator who can guide them to more effective communications.'

And though it is, as Geoff says, about the "timbre and tone of resolution," it is also about obtaining more satisfactory resolutions -- resolutions that not only satisfy more party needs, interests and desires but which invariably leave less value lying unused on the table when all parties leave the room.  

I'll grill Geoff about this over dinner tomorrow night and get back to you on all of this.

My own previous posts on joint sessions below:

Small Talk and Separate Caucuses.  Excerpt:

Here, then, is the weakness of shuttle negotiation. The parties' attention is fixated on money. A fixation that neuroscientists tell us makes us ungenerous and anti-social -- the worst possible context for a successful settlement.

The next time you're facing a difficult negotiation or mediation, remember the salutary effect of small talk in helping yourself and your opponent focus on the commercial and human situation that has brought you to the table so that you can more easily resolve the business and the people problem at the heart of the litigation.

Negotiating Justice in Community Mediation.  Excerpt:

Whether justice and fairness are, at some level, hard-wired into us (see Brain reacts to fairness as it does to money and chocolate) or culturally controlled, it seems that Rawls' conception of "justice and fairness" based upon reasonableness and enlightened self-interest might flow more or less naturally from a mediated dispute resolution forum where the parties, rather than the mediator, are in control.

Long Live the Death of the Reasonable Man

Emotions in litigation -- and at the negotiation table -- often run extremely high. It is for this reason that so many lawyers want to avoid joint sessions altogether and conduct their entire bargaining session in separate caucus with a "shuttle" mediator.

What I can tell you from three years of full-time mediation practice, however, is this -- when business people -- properly coached -- are finally willing to sit down and speak to one another, to explain their circumstances rather than their legal and factual position -- cases get settled rather quickly. (See Geoff Sharp's In Praise of Joint Sessions here)

Why?

Because they have more in common with one another -- including most particularly the dispute -- than with anyone else.