Joint Sessions and the Use of E-Neutrals in ESI Disputes

I am honored to have been featured in the American Bar Association's Dispute Resolution Section's Just Resolutions eNews during this year’s ABA Mediation Week. The theme was “Mediation: Successes, Challenges, Trends and the Next Generation: Looking to the past, present and future.” In looking at where we’ve been and what is to come in civil litigation, one can find a confluence in the growth of electronic information and the need for cooperation in gathering such evidence that it necessarily creates. Electronic Discovery is everywhere. Corporations and small businesses alike utilize computer systems to cut costs, improve production, enhance communication, store data and improve capabilities in this world of constant technological development. The prevalence of electronically stored information or ESI and its associated impact on litigation are readily apparent. E-Discovery has become vital to most cases. Virtually all business information and much private party information can be found only in ESI. At the same time, the costs of collecting, reviewing, and producing ESI reportedly have reached proportions that rival the amount in controversy, itself. This piece considers the role of the E-neutral who can facilitate the electronic discovery process in complex cases by helping parties to agree on key issues while together in joint session, enabling them to focus on the merits of their case. See article here-- http://www.americanbar.org/content/dam/aba/uncategorized/dispute_resolution/just-resolutions/kolin_joint_sessions.authcheckdam.pdf

The Evolution of the Joint Session

Recently, Kim Taylor, COO of JAMS, questioned the survival of the long-held practice of commencing mediation conferences with a joint session of all parties and their counsel. Usually, that provides an opportunity for each viewpoint of the case to be expressed to the other side and to outline the settlement process with participants, before breaking into individual caucuses. Over eighty percent of mediators surveyed earlier this year used such sessions twenty years ago. Lately, a resistance to joint sessions is reported to have arisen. That survey of neutrals revealed a decline in the use of the joint sessions. Regionally, some seventy percent of neutrals based in the east said they still regularly use joint sessions. I find them to be helpful and estimate that I start that way over ninety percent of the time. However, the report from Southern California is that joint sessions are held merely a quarter of the time. Perhaps the process has become confrontational or maybe both sides already understand the positions and everyone just wants to get down to the business of negotiating, supposedly saving costs. Of course, there are certain cases where a joint session is not productive and could actually prove detrimental to the process. Ms. Taylor suggests that because of self-determination, most mediators will not insist on a joint session if the parties do not want one. However, to skip an initial joint session could impact the process that follows, limiting options for settlement or finding common ground and the path to a deal. I try to use it regularly, as our rules require disclosures and I find it assists in laying some foundation for the process and expectations. Caucuses can remain confidential and the parties retain control over information to be shared. Using the open ended question in joint session to get positive responses from the parties at the outset on areas where there already may be overlap in agreement on facts or damages is essential to reaching a successful outcome. See more here-- http://bit.ly/1KajjyN