Isolation as a Strategy in Mediation

By Charlotte E. Thomas
Special to the Legal

Almost every mediation has both joint sessions attended by all principals and counsel as well as separate breakout sessions for single-party conferences. The joint session is intended to bring the parties together for a full exploration of claims and defenses to a dispute. In addition, a principal who feels unheard can speak out directly to another principal or principal’s counsel. A joint session also presents the opportunity for counsel to speak directly to an opposing principal about an intended trial strategy, the expense of litigation or any issue counsel believes the principal may not fully comprehend. Open communications between the parties and counsel facilitate the flow of information and may foster a conciliatory relationship, which can be helpful in reaching dispute resolution and possibly even a future business relationship.

Sometimes, however, the relationship between the parties to a dispute prevents them from prolonged interaction or even from being together in the same room. Where there is animosity between the parties, separating the principals can divert the focus of negotiations from the parties’ adverse relationship toward reaching a business compromise. In such instances, the need for separation goes well beyond the use of private breakout sessions. Indeed, the only way to bring some parties together is to separate them and maintain the separation throughout the mediation. An observant mediator will recognize the interparty dynamics and structure the mediation to separate the sides. Attorneys always should explain the nature of the interparty relationships to the mediator before the mediation and, if appropriate, suggest separation. Communications between the separated sides can be accomplished through the mediator or representative of the principal.

There are times when an attorney should elect strategic isolation by retreating with the principal into the breakout room. The self-imposed separation could be for symbolic reasons, such as the disapproval of the progress of negotiation, or to highlight the insignificance of the principal’s role in the negotiations or the underlying dispute. Another reason for an attorney to strategically retreat into isolation is if the principal is speaking or acting in a way that is detrimental to reaching compromise. Isolation allows the attorney to camouflage or control the flow of a principal’s comments and behavior.

What is said in mediation is absolutely critical in moving a dispute to resolution. Equally critical is what is not said. Isolation – through either a mediator’s active intervention or self-imposed – is one strategy for focusing the mediation on business solutions rather than the relationship between the parties.

Charlotte E. Thomas is a partner with Duane Morris, where she practices in the area of complex business litigation. She represents parties in securities actions, broker-dealer and financial adviser arbitrations, lender liability actions, directors and officers actions, intellectual property lawsuits, environmental and toxic tort actions, actions under 42 U.S.C. § 1983 and the defense of class actions. She can be contacted by emailing [email protected].