The question has haunted all of us who have been on the losing end of a case:  What if …  I had called that additional witness, or I had filed or not filed that motion?  Here’s one you might not typically ponder:  What if the parties had been able to talk one-on-one at the mediation?  I raise it only because of Ed Sheeran.  Yes, that’s right – the singer and songwriter.
 
On a Thursday morning in early May, I snapped open my Seattle Times to the headline “Jury:  Ed Sheeran didn’t copy Marvin Gaye’s ‘Let’s Get It On.”[1]  A fan of both artists and an amateur guitar player, I pored over the article.  What caught my attention wasn’t the verdict itself, the claims, or the importance of the case to the music industry – it was the post-verdict comment by Kathryn Griffin Townsend, one of the plaintiffs in the case:
 
After the verdict was read, Ms. Townsend said that she was glad to finally have the opportunity to speak one-on-one with Mr. Sheeran, and that he had invited her to a show on his tour, which opens on Saturday. “If we had been able to just talk,” she said, “we wouldn’t be here today.”
 
What?!  The parties battled for nearly eight years and spent almost two weeks in trial.  My review of the docket revealed nearly 300 entries.  Surely, at some point, they had talked and tried to resolve the case?  Curious, I discovered that – not surprisingly – the United States District Court for the Southern District of New York has a Court-annexed Mediation Program and that the judge presiding over the case had directed the parties to participate in that program in good faith.  Additional details were scant. The docket revealed only that the Mediator Session was held on January 19, 2018. 
 
Although what occurred at the mediation is unknown, the process allows for the parties to talk about the case in a non-confrontational setting.  Had they not done so? Perhaps the key words are “one-on-one.”  If Ms. Townsend and Mr. Sheeran had spoken together one-on-one, it’s possible that a trial might not have been necessary.  But would the attorneys have allowed that?  Would you?  If so, how would you prefer that the mediator structure or facilitate the one-on-one discussion?  Should it take place during an initial joint session or later in the day?  Would counsel do the talking?
 
The joint session has come in and out of favor over the years.  Here in the Pacific Northwest, we have a reputation for – to put it mildly – avoiding them.  It’s true that sometimes they work, sometimes they don’t.  In my practice, I like to have what I would describe as a short meet-and-greet session in every mediation, if the parties agree.  I do this for rapport-building purposes.  Whether more occurs during that session or different configurations of counsel and parties talk separately later in the day are open questions, guided by the parties.
 
A detailed discussion of whether to have any joint sessions at all, the timing of those sessions, and when and if to allow direct party-to-party communication is well outside the scope of this article.  The top-level takeaway is simply this: at least consider these mediation design questions before and during the mediation, as appropriate. They have the potential to make a significant impact on the success of the mediation. Your mediator will most likely bring them up, but you should feel free to do so as well.
 
Getting back to the copyright trial…  The first question on the Special Verdict Form asked:
 

1. Did Defendant Sheeran establish by a preponderance of the evidence that he independently created “Thinking Out Loud” and thus did not infringe the copyright of “Let’s Get It On”?

 
With one word – “yes” – the jury ended the case.  Could the time and expense of the trial have been avoided if the parties had just talked?  What if Ms. Townsend was right?
 
Dave is a full-time mediator and arbitrator in Seattle, Washington.  Prior to becoming a neutral, he was an active WDTL Member for many years.