The Joint Opening Session Is Nearly Extinct. I Still Offer It Every Time.

A Practice That Used to Be Standard

Thirty years ago, when Brian Robison started practicing law, every mediation opened the same way. Once both sides arrived, the mediator brought everyone into the same room, and the plaintiff's lawyer made a short presentation — directly to the other side's client, not just their lawyer. Documents, sometimes slides, sometimes a highlighted set of hot documents. Then the defense lawyer responded in kind, same room, same directness. It was simply how mediation began.

"That was standard operating procedure," Robison says. "The first step, once everybody was assembled, was for the mediator to bring both sides into the same room and have the lawyer for the plaintiff make a short presentation directly to the other side. The defense lawyer would then make his own pitch to the plaintiff."

Today, as a mediator, Brian still offers this option, but almost no one takes him up on it.

Three Ways to Start a Mediation

Before every mediation, Brian holds at least one prep call with each party separately, and at the end of that call, he gives the lawyers for each party three options as to how the mediation can start. "First is a traditional joint session with everybody in the room and lawyers making arguments directly to the opposing side. Second is what I call joint session light — I bring everybody into the same room, but I do all the talking. The lawyers don't talk, the clients don't talk. I try to get everybody's head pointed in the right direction, I make sure there are no questions about confidentiality or ground rules, and then we split up. The third option is for me to split everybody up immediately, and we start with everyone separated."

Option one — the traditional version, the one that used to be automatic — has quietly disappeared. "It was rare when I started mediating a few years ago, and now it's just never adopted. I'm never hearing anybody say this is how we should do it."

The Two Most Common Reasons Why Everyone Says No

The objection isn't subtle, and Robison hears the same two reasons in nearly every case.

"One is: it'll make everybody mad, and I'll spend the next three hours being a therapist trying to calm people down and get emotions out of the room."

The second is more strategic than emotional. "The plaintiff's lawyer will say: I don't want to come out of the gate strong, talking about how our case is incredible, there's no way we can lose, we're going to get full damages, punitive damages, the whole deal — because that will just embolden my client. And at two o'clock, when I need him to make a real move, he is not going to do it, because he dug in after hearing my opening speech at nine in the morning."

In other words: lawyers have concluded that showing conviction early makes their clients less willing to compromise later.

What the Old Version Actually Did

Robison's own experience with joint sessions, back when they were standard, doesn't match the counterproductive image the format now carries. "The presentations I saw were very factual. They usually had documents. It usually was kind of a dispassionate view of the law and the facts from our side."

The real function, he says, had nothing to do with persuading the other lawyer. "In most lawsuits, the lawyers talk all the time — they're in hearings together, depositions together, they see each other at bar functions, they meet and confer over discovery fights. The lawyers know each other and talk to each other constantly. The traditional joint session was my chance to talk to the client on the other side directly, and make sure the client understands the risk."

That's the piece that disappears when joint sessions with attorney argument go away: the one moment in the entire dispute where the other side's client hears the case stated plainly, by a lawyer, in the room — instead of relayed secondhand by its own counsel, whose job is advocacy, not neutrality.

When Robison Still Pushes for It

He hasn't stopped offering it, and there are specific situations where he actively encourages the other side to take it. "The times when I push for attorney argument during opening session are situations where I think there's a lawyer who's not communicating the full story to his client."

If a prep call gives him that read, he'll say so directly to the lawyer on the other side. "I think this would be a golden opportunity for you to speak directly to the client on the other side. I think they will hear things from you that they have not heard from their own lawyer. Right now, the other side is emboldened. The client thinks it is bulletproof. I think a short presentation from you might open their eyes in a good way. If you get in there without a bunch of fire and brimstone, no adjectives and adverbs, no name-calling, I think this will work. This is not closing argument — this is more just, here are the facts, here are some documents, here's what I think a jury is going to think."

What This Means for the Attorneys Reading This

The market has made a collective decision that the risk of a joint opening — an angry room, a client digging in — outweighs the benefit. That's a defensible call. But it's a question worth exploring in every case. Rather than dismiss the idea out of hand, lawyers should consider whether attorney argument at the start of a mediation might be a real opportunity to present risks to the other side that they have not heard before. In some cases, this path can prompt real progress.

The next time you're preparing for a mediation, it's worth asking your mediator whether a joint session with attorney argument might be help convey a message to a client that the client has not yet heard.

From the Mediator's Chair

Brian E. Robison is a mediator and trial lawyer at Brown Fox PLLC in Dallas, Texas. With almost 30 years of experience in complex commercial litigation, he brings a mediator's read on both the law and the room to every engagement.

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