The Joint Session: Help or Hindrance?
In an ideal mediation all participants sit together in one room and listen respectfully to the interests and needs of the opposing sides. There is empathic communication and a willingness to reach a resolution. Though ideal, this scenario is rarely the norm. More realistically, the practice of bringing all parties together in one room can either help or hinder the mediation process depending on the circumstances of each case.
It would be inaccurate to say that I don’t prefer joint sessions. I do. There is a dynamism and alacrity of engagement that occurs in real-time that cannot be duplicated in caucus. A joint session allows for a productive release of emotion and even catharsis, which can often translate into faster resolutions and outcomes that are more responsive to the parties’ needs.
On the other hand, I have facilitated sessions that had the potential to derail if conducted jointly. In one employment case, it was clear to me when I met with the parties and their counsel before the start of mediation that the employee would not have been able to contain his anger and aggression, which I assessed would have caused the employer to become more defensive and a lot less inclined to negotiate in good faith. By working exclusively in caucus, I was able to buffer the employee. He may not have liked it but it was in his best interests.
Regardless of the variables, the emerging trend I am seeing, in employment disputes in particular (even non-adversarial ones), is a desire to get down to business and negotiate in caucus and leave the messy emotional stuff aside. Is that always the best choice? I don’t believe so.
Often in employment cases there is a psychological/financial divide. The employee may be interested in expressing their emotions about how and why they were terminated, whereas the employer may only be interested in reaching a financial settlement. Until those interests are somehow aligned, the chances of resolution decrease substantially.
Not only am I noticing a move away from joint sessions in my own practice, but so too are mediators across the United States and parts of Europe, as detailed in the article The Long Goodbye: Is Mediation Evolving or Regressing? published by JAMS International.
This apparent trend away from the use of joint sessions has led me to want to learn more. I am launching a six-month study to examine the decline of the joint session. My study will focus on the use of the joint session in my core practice areas: employment, personal injury and commercial disputes. There will also be a smaller sampling taken from the construction and estates disputes I mediate. I am interested in learning about which areas joint sessions are currently being conducted within, how long those mediations are lasting and the corresponding success rates. I am also curious to know what the impact is of not having a joint session.
Ultimately, each mediation is as unique and specific as the human beings seated around the table. As counsel, it is important to maintain an open mind and listen to your client. Spend time trying to understand their broader interests including their psychological and process needs. With those interests in mind, you can then determine the benefits or disadvantages of a joint session by looking at other factors, including the nature of the relationship between the parties (length, history and future prospects), the value of hearing directly from a party as a means of assessing credibility and how that person might perform as a witness at trial, and information exchange practicalities (for example, the value of exchanging large amounts of data or building consensus in real-time). Whether carried out through joint or caucus sessions, or a combination of the two, the ultimate objective of any mediation should be to allow the parties to walk out the door feeling as though the process was responsive to their unique needs.
So are joint sessions good or bad? It depends. Whether, how and when to use a joint session should be determined in each case after carefully considering the parties (their relationship and goals), the facts and issues, and how closely aligned each side's interests are at the outset of the mediation process. Sure, there’s a risk of escalating the conflict through the use of a joint session, but let’s not forget that mediation is a conflict resolution process and safeguards can be put in place to reduce the risk and maximize the return.
