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Commercial Mediation Part IV: Opening and Joint Session, Caucus, and Generating Movement

(232 Ratings)

Produced on: February 27, 2015

Course Format On Demand Audio

Taught by


Course Description

Time 63 minutes
Difficulty Intermediate

We have seen how preparation can make a major difference in the development of an effective mediation.  So, too, the first touch of the mediator's opening statement at the commencement of the in-person mediation session can set a tone for the process. Setting expectations and orienting persons toward dialogue that can build understanding and move towards a deal at the outset is key.  Through an opening statement delivered in joint session, the mediator sends the participants an encouraging message through both verbal and non-verbal communication that these conflicting parties are all in this together; that they are all persons of good will and capacity, who will identify the issues and work things out.


In Part IV of Mr. Baum's Commercial Mediation training, we consider ways of setting up an opening joint session - whether by an initial caucus or through pre-mediation discussions - and review various components of an effective first joint session and opening statement.  To this end, Mr. Baum demonstrates an opening statement by the mediator.  


In addition, Part IV reviews ways to maximize the use of joint sessions through continued dialogue and information exchange and looks carefully at the deep potential of joint session both for the initial session that launches a mediation process and for later uses as well.  


Part IV also continues reflection on the debate sparked by Himmelstein and Friedman's joint-session only approach, and explores ways to use the rich potential of caucuses. We look at the SWAP/LION methodology developed by trainers Jeff and Hesha Abrams for organizing discussions in various stages of caucuses (Strengths, Weaknesses, Alternatives, Perspectives/List Interests, generate Options, and Negotiate), and consider differences in early, mid, and late stages of caucusing in the mediation process.  


Learning Objectives:

I.    Prepare parties and counsel for a productive opening joint session

II.   Understand and communicate the potential, and effective uses, of joint session

III.  Burnish your opening statement and elicit helpful opening statements from parties and counsel

IV.  Enhance effective communication among parties in joint session

V.   Learn how to handle emotionally charged parties and situations

VI.  Consider the pros and cons of joint session and caucus

VII. Review various productive uses and opportunities of caucus, including:

            a. Party self-reflection 

            b. Expression of emotional issues to a compassionate listener

            c. Ascertaining parties' interests in safe forum

            d. Recognition of other parties' perspectives in safe forum

            e. Candid case analysis 

            f. Candid analysis of BATNA, including case transaction cost and risk analysis

            g. Safe crafting of deal proposals

            h. Reality testing

            i. Safe consideration of the value of proposals from other parties

VIII. Review the SWAP/LION model for various stages of caucus




Simeon H. Baum

Resolve Mediation Services, Inc.

Simeon Baum, President of Resolve Mediation Services, Inc. (, has successfully mediated over 1,000 disputes. He has been active since 1992 as a neutral in dispute resolution, assuming the roles of mediator, neutral evaluator and arbitrator in a variety of cases, including the highly publicized mediation of the Studio Daniel Libeskind-Silverstein Properties dispute over architectural fees relating to the redevelopment of the World Trade Center site, Trump’s $ 1 billion suit over the West Side Hudson River development, and Archie Comics’ shareholder/CEO dispute. He was selected for New York Magazine’s 2005 - 2014 “Best Lawyers” and “New York Super Lawyers” listings for ADR ( and Best Lawyers’ “Lawyer of the Year” for ADR in New York for 2011 and 2014 ( for the International Who’s Who of Commercial Mediation Lawyers 2012-14.

An attorney, with 30 years’ experience as a litigator, Mr. Baum has served as a mediator or ADR neutral in a wide variety of matters involving claims concerning business disputes, financial services, securities industry disputes, reinsurance and insurance coverage, property damage and personal injury, malpractice, employment, ERISA benefits, accounting, civil rights, partnership, family business, real property, construction, surety bond defaults, unfair competition, fraud, bank fraud, bankruptcy, intellectual property, 

Mr. Baum has a longstanding involvement in Alternative Dispute Resolution ("ADR"). He has served as a neutral for the United States District Courts for the Southern and Eastern Districts of New York Mediation Panels; New Jersey Superior Court, Civil Part, Statewide; Commercial Division, New York State Supreme Court, New York & Westchester Counties; U.S. Bankruptcy Court, Southern & Eastern Districts of New York; the New York Stock Exchange; National Association of Securities Dealers; the U.S. Postal Service, the U.S. Equal Employment Opportunity Commission, and CPR, and National Academy of Distinguished Neutrals (NADN), among others. 

Mr. Baum’s peers have appointed him to many key posts: e.g., Member, ADR Advisory Group, Commercial Division, Supreme Court, New York County; ADR Advisory Group and Mediation Ethics Advisory Committee, N.Y. State Unified Court System. Founding Chair of the N.Y. State Bar Association’s Dispute Resolution Section, he was also subcommittee chair of the N.Y. State Bar Association’s ADR Committee; Legislative Tracking Subcommittee Chair of the ADR Committee of the Litigation Section of the American Bar Association; Charter Member, ABA Dispute Resolution Section Corporate Liaison Committee; President, Federal Bar Association’s SDNY Chapter, and Chair of the FBA’s national ADR Section. He is past Chair of the New York County Lawyers Association (NYCLA) Committee on Arbitration and ADR. Besides serving on the NYCLA’s Committee on Committees, he is past Chair of the Joint Committee on Fee Dispute and Conciliation (of NYCLA, ABC NY, and Bronx County Bar Associations), and is on the Board of Governors, NYS Attorney-Client Fee Dispute Resolution Program. He is also a Fellow of the American Bar Foundation. He is a Director for the New York NADN panel. 

Mr. Baum has shared his enthusiasm for ADR through teaching, training, extensive writing and public speaking. He has taught ADR at NYU's School of Continuing and Professional Development, and he teaches Negotiation, and Processes of Dispute Resolution (focusing on Negotiation, Mediation and Arbitration) at the Benjamin N. Cardozo School of Law. He developed and conducts 3-day programs training mediators for the Commercial Division, Supreme Court, New York, Queens, and Westchester Counties. He has been a panelist, presenter and facilitator for numerous programs on mediation, arbitration, and ADR for Judges, attorneys, and other professionals. Mr. Baum is a graduate of Colgate University and the Fordham University School of Law.


Linda K.

excellent presentation

Gwen I.

Very good series

D. Larry G.

Very good and useful information.

Merrick W.


Terence S.

very good instructor

Miranda M.

Didn't want it to end.

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