I have an unconventional mediation practice. Unless I sense violent tenancies, I start and end with the disputing parties and their attorneys all together in one conference room. I have them set intentions for what they want out of the mediation. There is logic behind what I do. As long as the litigation is active, the disputing parties are inseparable. The logistics are demonstrative. Further, I believe that it is unifying for people to state out loud their intentions (and hear) that everyone intends to participate in good faith to resolve the dispute. People start living into their intentions.
Now, some attorneys get a little squirmy about their client saying anything in front of the other side – even if it is limited to stating their intention. For the first time ever this week, however, an attorney got downright hostile when, in a private closed confidential session, I asked him whether his client could please answer my question. He walked out and accused me of trying to interfere with the attorney-client relationship.
We worked it out. It is not accidental that the word “mediation” comes from the Latin root “medicus,” meaning “to cure.” It is cathartic for a disputing party to express himself openly. It is healing to feel heard – especially by someone who is objective and who has no stake, whatsoever, in the matter. Allowing the mediator and client to forge a relationship builds trust when it is time to get lovingly honest about the facts and/or tough with the numbers. Since the attorney usually hires me and the client pays, both are my clients. I have no intention of interfering with the attorney-client relationship. There is no room for adversarialism between a mediator and an attorney; there is only room for a designed alliance.