Observations of an Arizona Mediator

After nearly 4 years serving as an Arizona mediator, I realized that starting a mediation with a joint session involving parties and counsel will be a rare event. The response to my notification that I plan on starting in joint session is almost universally the same from all counsel: “it will only make matters worse” or  “the parties are too hostile.”  The cases to which I refer are not divorce cases nor are they cases where death or injury is involved.  The cases are commercial disputes among business men and women.

Is this a problem arising from the dispute between the clients or is it a result of the “hard-ball litigation” culture among Arizona attorneyss? My cursory research indicates that it reaction is not an Arizona phenomenon. The instructors for the advanced mediation programs at the Strauss Institute at Pepperdine University School of Law have commented that it appears to be a position among participants in mediations in other jurisdictions that has gained strength over the last few years.

Why avoid joint sessions?  Is it a counsel’s fear of losing of control, or is it it an increasing effort by cients as they become more mediation savvy? My initial reaction is that counsel are losing out on a unique opportunity to influence the outcome of the mediation or trial.  By this, I am not recommending an aggressive approach to dispute mediation. The joint session is a pivotal moment to develop a more in-depth understanding of the opposing party, opposing counsel and the nuances of the lawsuit.

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