I heard about a mediator who started a session by asking all the participants to spend some time talking about their personal histories and interests, presumably in an effort to get the parties to see each other as human beings and establish connections that might help them resolve the dispute. Lo and behold, these parties did resolve the dispute to each side's great satisfaction, but at least one side later reported that they disliked this touchy-feely aspect of that mediation. So even though this technique was proven to work well, it still made one of the parties uncomfortable enough that they would probably prefer a more conventional and perhaps less effective approach.
Mindful of stories like that, I try to make sure parties buy into whatever process we might be following in a mediation before proceeding. So I don't force participants into joint sessions. I also don't require people to share details of their private lives, or sit around the campfire and sing Kumbaya. But I do generally encourage parties and attorneys at least to think about doing a joint session at some point in the process. I also tell them we can retreat to separate rooms if they feel uncomfortable about continuing.
In Southern California, it's often an uphill battle to persuade parties and attorneys even to consider participating in a joint session. For some reason, joint sessions have a bad name here, unlike in a lot of other places where they are apparently still the norm. Maybe that is just the way the practice has evolved. Maybe it is because parties in mediation have somehow gotten the wrong idea about what is supposed to happen in a joint session. Or maybe it's because some of the mediators who still hold joint sessions are doing them wrong.
As an example of the common reluctance to engage in joint sessions, one of the attorneys in a case I mediated recently told me almost as soon as he walked into my office, that he disliked joint sessions and thought a joint session was out of the question in this case. That would exacerbate the conflict further, he told me. It would give each side an opportunity for chest-thumping that would only inflame passions on the other side. The parties were already angry enough with each other, and probably shouldn't be in the same room. This was far from the first time I've heard these perceptions expressed.
I responded that if we did decide to do a joint session, I didn't expect to see any chest-thumping. I had no desire to listen to each side's attorneys give a preview of their opening statement or their closing argument at trial. I don't think that is productive. Instead, what I suggested we might do in a joint session was to exchange information that might be helpful to resolution of the case. Information about the parties' respective future business plans, for example. Information supporting the parties' respective damage claims, to the extent that had not already been exchanged. Exchanging that kind of information directly across the table is often more efficient that requiring the mediator to go back and forth to convey questions and answers. It's also helpful to dispelling some of the suspicions and distrust that builds up between opposing parties in a lawsuit.
A second purpose is to allow the mediation to be conducted in a more transparent manner. Rather than wondering what is happening in the other room, each side can hear directly from the other side what is troubling them, and what is important to them. If mediation works by means of communication and understanding, that process is often facilitated by face-to-face contact. Not always, mind you. Sometimes parties are more receptive to having the mediator convey information indirectly. But you lose a lot of body language and emotional content that way.
Finally, in the ideal situation, a joint session can allow the parties to brainstorm together to design a solution to the conflict, rather than work at cross-purposes and in opposite directions. But it takes some time to break down the barriers of distrust and hostility that prevent parties from working together.
Eventually, the lawyer who adamantly told me at the beginning that he was opposed to joint sessions became so curious about what was going on in the other room, that he finally decided he wanted to go in and meet everyone, and convey to them some of the things that were motivating his client. And he did. And we eventually settled the case. With only a small amount of chest-thumping.
By Joe Markowitz