Communicate directly? Why not use a "Settlement Conference”?

The party-centered approach to mediation has the participants speaking directly, with the assistance of the mediator. The dominant paradigm in commercial mediation is a “settlement conference” – where a mediator separates the parties and shuttles messages. The "settlement conference" model of mediation is based on an assumptions that: (i) the parties and their legal counsel are incapable of communicating effectively, and (ii) direct discussions will increase conflict and make the situation worse. I don’t believe that either assumption is universally, or even generally, correct.

I want parties to meet in joint sessions, rather than shuttling, because:

Communication is better:

• You can present your positions, arguments, rationale and interests directly to the other party.  

• Suspicion can be reduced – you hear all key statements for yourself.

• The effects of the “settlement culture” (e.g., strategic misrepresentation) are reduced.

The information exchange is accelerated.

• Data, perspectives and interests are exchanged rapidly. 

• You ask your questions directly to get what you need.

• Time is spent communicating, not waiting for the mediator.

Bargaining opportunities are improved

• You can use interest based bargaining.

• You can encourage reciprocal conduct and affect the bargaining context through your own conduct, attitude, statements, offers, questions and concessions.

• Bargaining reference “bottom line” values, but is not driven solely by them.

• Jointly negotiated agreements are more demonstrably more durable.

• Exploratory offers are not only feasible but encouraged, and “logrolling” opportunities are improved.

Better decision-making

• You operate on your own judgments and assessments, not those of the mediator.

• Your options are more clear.

• Evaluate credibility yourself.  

• Better assess whether mediation is showing progress and deserving of further energy.