Mediators have their favorite topics to debate when they get together. An important one is whether or not to have a joint session. I share the prejudice of most mediators that opening statements constructed by counsel to present their positions to the other side (like being in court) are fraught with danger and risk being counterproductive. However, my view is that a joint session is valuable if properly utilized.

Confidentiality and the inability to share important information is another concern of mediators. Cautious counsel frequently admonish the mediator in their written submissions that everything in the statement is confidential and should not be shared with any other party. Usually the mediation statement contains almost nothing that is really confidential or unknown to the other parties. So the mediator obtains information that may be quite valuable but, without specific permission, cannot divulge the information.

A Directed Discussion has many of the advantages of an opening statement without the disadvantages, in that the mediator specifically requests parties to address particular issues and the lawyers can adjust the throttle on the amount of information shared to preserve what is deemed confidential. It also has the advantage that it is being communicated by one side directly to the decision-maker on the other side without the filter or interpretation of third-parties.

The greatest advantage of the Directed Discussion is that the mediator controls the basic flow of information in an organized way which is directed to the issues, facts and law that the mediator thinks might be outcome determinative in the dispute. The mediator, through careful preparation which starts with a request for information from the parties, organizes the discussion format based on the submissions and supplementary materials.

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