Plenary Sessions

AuthorJOHN HOLLANDER
Pages33-58
plenary sessions

chapter two
Plenary Sessions
What Is a Plenary Session?
   commences with a plenary session.
In theory, the mediator leads an adult discussion to try to
resolve issues between the parties. In reality, it is rarely so
simple. e plenary session is a meeting of the parties, law-
yers, and the mediator. It is the duty of the mediator to
focus the attention of the negotiating parties on the issues.
A major task is to avoid distraction on matters that are not
central to the issues to be resolved. It is vital to the success
of the mediation that a decision maker be present. Often
this means that the party does not have to be present, and
in fact, it often means that the party should not be present,
as in the case of a subrogated claim or an insured defendant.
How Does it Work?
   have conrmed over the ages, plans
go up in smoke once the battle starts. e Scottish poet,
Robbie Burns wrote, “e best laid plans of mice and
men gang aft agley.” is is also true for mediations.
   

e customary format for mediation is for the medi-
ator to open the discussion. First, the mediator introdu-
ces all the people at the session, commits everyone to
secrecy, and conrms the payment terms for the medi-
ator’s fees. Most of this can be canvassed beforehand with
co-operation of the lawyers.
Next, the mediator lays out the ground rules for what
is going to happen at the mediation. In some cases, this
introduction is restricted to guidance about how to con-
duct an adult discussion that is free from rancour and
interruption, and is respectful of what is said by the op-
position. In some cases, the mediator will then separate
the parties into their respective caucus rooms; in some
cases, the mediator will summarize the issues to be dis-
cussed and resolved. In almost every case, the mediator
will express optimism that responsible adults can come
together and resolve their dispute.
One subject mediators often raise is that of authority.
Do the people in the room have the power to commit to
a nal settlement then and there? If there is someone else
whose imprimatur may be required, is that person avail-
able at short notice?
It is customary (but not mandatory) for the mediator
to give the parties an opportunity to express a summary
of what brings them to the mediation. Usually the lawyer
speaks for that party, although there are occasions where
clients will speak out at this point. is issue will be dis-
cussed later in this section. One mediator, George Adams
of Toronto, likes to deliver the opening presentation for
each party. In doing so, Mr Adams eliminates the evoca-
tive language to avoid triggering emotional responses. He

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