A few  weeks ago, I conducted a “lemon law” mediation. Over the past few months, most of these have been conducted by using separate sessions only; counsel have not wanted to participate in joint sessions. However, this time, plaintiff’s counsel wanted to hold a joint session. Defense counsel who had worked frequently with plaintiff’s counsel in the past and had a cordial relationship with plaintiff’s counsel, agreed.

Plaintiff’s counsel explained that she wanted to go through each repair order rather than discuss the concerns with the vehicle in a general sense. Evidently, she believed that by going through the details, this would have greater impact on her client, making it easier to settle the matter.

So, we sat down together for the joint session and started going through each repair order. After a few moments, defense counsel asked a question of the plaintiff, whereupon plaintiff’s counsel intervened by asking a different “softball” question. Defense counsel said nothing, letting this intervention go. However, after 2-3 more incidents of this, defense counsel and her client displayed  their upset, claiming that plaintiff’s counsel was “playing them” by setting up the joint session to be very one sided in the story telling (obviously, plaintiff’s side) and not allowing any frank, candid discussion to occur. Defense counsel and her representative left the room. And, needless to say, the matter did not settle.

The episode left a bitter taste in everyone’s mouth. After the mediation was over, plaintiff’s counsel asked me what she had done wrong. I opined that if one invites a joint session, one must be prepared for the open, frank, candid conversation that follows. Counsel advised that she “took over” the questions, because she did not know how her client was going to respond. I  noted that perhaps then more preparation for mediation was needed, or else, some ground rules needed  to be set out, such as no questions, or that in response to defense counsel’s first question, she should have simply stated that she would not allow her client to answer questions. To simply “high jack” the questions by interrupting and asking a different question, was, obviously, not the way to handle her own wariness in letting her client answer the question.

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Tags: Defense counsel