Mediation Message No. 50


In the courtroom, a sidebar conference between attorneys and the judge takes place outside the earshot of the jury and, by necessity, the parties. At mediation, the informal conference or sidebar is a discussion between the mediator and one or all of the attorneys outside the presence of the client or clients.

It is not unusual for an attorney to request a private conference with the mediator before the mediation has begun to advise about a circumstance that may impact settlement; perhaps it’s an insurance problem, some related litigation, prior negotiations or the conduct of the opposition – none of which were mentioned in the attorney’s brief. Or an attorney may become aware of the need for such a conference after the mediation has begun. For example, the attorney may have “control problems” with the client and needs the mediator’s assistance in talking to the client about the pros and cons of rejecting a settlement with the opposing party.

A mediator may also believe that speaking with an attorney outside a party’s presence can enhance the chances of resolution. Most usually, the mediator senses that the client is not listening to the attorney and mentions that fact to the attorney. Attorneys usually welcome a mediator’s reality-based intercession when a client becomes confused or conflicted.

Whatever the reason for such conferences or sidebars, attorneys should not hesitate in asking for them and should know that when a mediator requests one, it is only to facilitate the process.

Judge Michael D. Marcus (Ret.)
ADR Services, Inc.
1900 Avenue of the Stars, Suite 250
Los Angeles, California 90067
(310) 201-0010

Copyright Michael D. Marcus, May 2009

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