A Debate about the Opening Session


At the recent Mediator Breakfast in London speaker, Jay Welsh of JAMS, caused quite a stir when he said that around 80% of their American mediators (almost all former judges and certainly all lawyer mediators) don’t have an opening session! Those of us who see this session as being a vital part of the mediation process, allowing parties to tell their story and also to hear the other side’s lawyer (and expert) give their alternative view of the relevant law (and expertise), see this as an awful undermining of one of the core principles of successful commercial mediation. Obviously there are times when having everyone together at the start is not appropriate, but in my opinion, this should always be the last resort, the mediator having established the reasons and explained the advantages.

One other statistic I understand Jay Welch quoted of the JAMS mediators was that 75% would normally express an opinion on the merits, outcome and appropriate settlement. Of course, this is always a danger with judge mediators but where did the “party-centred process” go and become a “mediator-centred process” take over? And what about the parties being in control, their problem, their outcome? Can this really be mediation? Or is it just a quick and dirty arbitration?

 

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