The Effective Use of Joint Sessions
I have been practicing mediation since before there was an ADR office in the Los Angeles Superior Court, before judges and counsel realized that mediation wasn’t sitting cross-legged on the floor and vocalizing, before some people had email addresses and others didn’t, and certainly before there was a mature mediation profession. Having practiced mediation for so long, I have an observation to share.
Back then, caucus sessions were very rare. Mediation was a facilitated dialogue between the face-to-face disputants. But, to sing a familiar tune, - “what was old is new again.” Just as nothing ever really goes out of fashion because it comes back later, the same is true for the “joint session.” For some, the mere utterance of the phrase causes discomfort. From where I sit, the most sophisticated counsel are understanding the value of a joint session and are savvy about when and how to use it to benefit their client’s case.
Two such savvy counsel with whom I worked recently are plaintiff’s counsel Reza Mirroknian and Pedram A. Javanmardi and defense counsel Craig Nichols. All counsel commented on the value of participating in the joint session in that case.
Mr. Mirroknian stated “I wish more people would conduct joint sessions.”
Mr. Nichols stated “the session cleared the air regarding several factual disputes between the parties” and “the approach served to speed up the process considerably so we were able to negotiate numbers more quickly.”
Each case process deserves custom design. No two cases are the same because people, personalities, issues, the mediator, and the confluence of these factors, make every situation unique. An adept mediator should guide participants through a conglomerate of moves so as to maximize the negotiation process for all. To say “I will never have a joint session” or “I will always have a joint session” misses the point. These decisions are important ones and should not be left to chance or repeated patterns. Counsel and parties deserve a thoughtful process that is responsive to the specifications of their specific dispute because one size does not fit all.
The value of a joint session, if properly led by the mediator are multi-fold: (a) counsel have an opportunity to observe the interaction between the opposing counsel and client; (b) opposing counsel have an opportunity to observe how the parties present and factor this information into the negotiations; (c) counsel have an opportunity to put the opposing counsel at ease so that information is gleaned, that would not otherwise be shared, due to fear, distrust, or discomfort of some kind; (d) counsel can eliminate the ill will that may have accumulated during the litigation process and thereby have an opportunity to benefit the client in a unique way; (e) common interests, history, or life experience oftentimes changes the dynamics of the negotiation - for the better and the joint session provides this opening; and (f) counsel have an opportunity to make their own assessments and are not placing complete reliance on the mediator, who has his or her own filters.
As a 20+ year practitioner, I have witnessed amazing turns in mediation when parties and counsel share control of the process with the mediator in whom they’ve placed their trust and dollars to settle the case. But, the final call is up to the counsel. If the mediator has not convinced counsel of the benefits for a joint session and/or counsel have doubts as to whether the mediator is capable of conducting a joint session toward a productive outcome, then it should be resisted.
My cautious observation is that the joint session is on the rise…and with good reason. In the right case, at the right time, with the right mediator, it adds value to the negotiations.