The Joint Session: The Debate Continues

Is there a more polarizing topic in mediation practice today than the use of the joint session?
 
Some might say that joint sessions are a waste of time. I don’t share that view. While I would never push anyone to use a joint session, I encourage its use.
 
I was recently interviewed for an article in the Law Times along with fellow mediators, Allan Stitt, Mitchell Rose and Jeff Morris. The focus of the article was on the benefits of an opening statement delivered in joint session. 
 
Some lawyers and mediators argue that opening statements are unnecessary and potentially inflammatory. Their view is that each side’s position has been set out in advance in their mediation brief, so they consider it a redundancy to restate their position in an opening statement that serves only to create further distance between the parties. 
 
I prefer to see the opening statement as an opportunity to convey to the other side a positive tone and to set a collaborative intention for the day. It also presents a chance to persuade the other side of the strengths of your case. It may also be the first opportunity to hear directly from the opposing party, offering insight into their credibility and how they might perform as a witness at trial.

While there may be valid reasons for not delivering an opening statement in a particular case (a history of strong and destructive emotions, the existence of a power imbalance where, for example, one party is self-represented and the other is represented by counsel), in my view, these occasions are rare. 

Typically, I will ask counsel and the parties privately prior to the start of a mediation if they would like a joint session to begin the session. If I sense through those discussions that there would be some value in opening statements or, alternatively, a mediator summary of the key elements of the dispute, followed by a focused joint discussion on key issues and/or evidence, I will encourage the joint session and coach the parties and counsel so that they can make the best use of the opportunity. If I encounter resistance, I back off.
 
The value of a joint session doesn’t begin and end with the opening statement. Information sharing, that can help each side better assess the relative strength of their case, can often occur more efficiently in real-time in a joint session. Where there is the potential for an ongoing relationship between the parties, working through issues in joint session may help to begin to heal wounds that are blocking settlement discussions. And, some of the most creative options for resolution can often be found in brainstorming sessions conducted in joint session. In a recent partnership dispute I mediated, the parties arrived reluctant to sit in the same room and left with a new agreement on a future business relationship. The use of the joint session in that case was critical to achieving success.
 
I am not suggesting that a joint session is the best fit in all cases. Whether or not the joint session can be useful and when and how to use it effectively will depend on the circumstances. I discuss the benefits of the joint session, and how it can be utilized to save time and money, in my recent blog, The Joint Session: Help or Hindrance?.
 
The mediation table is not the courtroom and the mediation process is not a trial. In mediation, settlement decisions are not made by the lawyers or the mediator. There is no judge to decide the outcome of the dispute.  Decisions are made by the parties. Accordingly, the advocacy skills lawyers draw upon in a mediation are very different from those needed in the courtroom.
 
The joint session is a hallmark of mediation practice, woven into fabric of the mediation process. Its use dates back to biblical times. It's an integral part of the native healing circle process. The joint session represents one of many tools that a mediator can call upon when mediating.
 
Over the past eight months I have been tracking the use of joint sessions in my mediations. I look forward to assessing and reporting back on the findings of my study in the new year. But, whatever the results may show, I am confident we have not seen the end of the joint session.

​In the meantime, let the debate rage on!