Geoff Sharp is a Commercial Mediator and 2009 LEADR Fellow based in New Zealand (and also author of an award winning blog, mediator blah… blah…), writes on one of the mediator’s core tools - the joint session.
The working premise for this paper is that over the last 3 to 5 years we have seen a move away from mediators doing their work in joint session with all the mediation parties together at the table towards the process becoming dominated by private or caucus sessions where the mediator meets privately with individual parties only. This paper, which is written in the context of mediating the litigated case, will deal with this increasing trend amongst mediators to do away with a joint session and adopt a shuttle mediation model.
This is an especially topical debate amongst mediators with some advocating that a purely caucus model saves time and is what the market now requires. This compares with other mediators resisting the demise of the joint session, saying it is at the heart of what we do and of what mediation is.
The default model for mediation of legal disputes in Australasia has evolved into a daylong meeting structured around openings by the parties, a sometimes lengthy joint session where issues are discussed with the parties usually separating around lunchtime to consider where they go to next. Often there will be a further joint session after lunch with a gradual move to a more future focused approach in the afternoon.
In this model the engine room of the mediation is the joint session where issues are explored and where parties drill down into key matters identified in the opening statements as needing debate and dialogue – usually with the mediator facilitating an exchange of party perspectives or sometimes the parties simply staying in a legal frame and claiming the merits of their own position against the demerits of the other. In the mediation of legal disputes we have come to know this as ‘valuing the case’.
While it would be a mistake to claim that there is one right way of mediating and while the debate between the different “schools of mediation” is subsiding, one commentator has suggested that the bright line that historically divided our field is no longer along the facilitative versus evaluative fault line, but now more about a “dialogue based” versus “separation based” rift.