Joint sessions have suddenly shown up as a hot topic again. The fall issue of the ABA Dispute Resolution magazine features an article by Eric Galton and Tracy Allen alarmingly called "Don't Torch the Joint Session," which decries the "disturbing trend" of eliminating the joint session from mediation. LA mediator Lynne Bassis has an article in the same issue entitled "Face-to-face Sessions Fade Away." And New Zealand mediator Geoff Sharp on the Kluwer Mediation Blog has written a piece with the strange title "The Californication of Mediation," which identifies this disturbing trend as emanating from my home base, the well-developed mediation market of Southern California. Eric Galton has even formed a facebook group called "Save the Mediation Joint Session and Promote Party Participation."
What's going on here? Are joint sessions dying? Do we need to create a movement to "save" them? As a proponent of joint sessions myself, I support efforts to increase their use, and to educate attorneys and parties on the benefits of joint sessions. I agree that for some time now, the trend has been toward more reliance on caucus-style mediation. This trend feeds on itself: as caucus mediation becomes the norm, part of the very culture, parties and attorneys expect to remain in separate rooms throughout the process, and even refuse to try joint sessions. Concerted efforts will probably be needed to reverse this trend.
In my own mediations. attorneys frequently tell me that joint sessions are a waste of time, or that joint sessions allow lawyers to grandstand, or that joint sessions will just inflame the parties and set back their efforts at resolving the dispute. Parties also often express reluctance at meeting with the other side, with whom they have usually had little or no contact since the dispute arose. I suspect these feelings arise from experiences with joint sessions that are not being conducted properly, i.e., that to the extent mediators are allowing joint sessions, they are doing them wrong. I think these attitudes about joint sessions also arise from ignorance or laziness or fear or distrust.
Because I encounter these objections frequently, I find myself in my own mediation sessions attempting to sell attorneys and parties on the benefits of joint sessions. It's going to be more efficient, I might say. Rather than listen to me repeating what the other side is telling me, why not hear it directly from the horse's mouth? Or I might try to explain to the parties that we will set some ground rules that will prevent the joint session from turning into an opportunity for grandstanding. What we're going to do instead is share information, and allow the parties to have the chance to listen and find out what's really bothering the people on the other side of the table, and to tell them what is bothering you. Face-to-face communication has a lot of advantages over shuttle diplomacy.
As is explained in the articles cited above, mediators should understand that face-to-face communication, conducted properly and with guided party participation, performs a crucial function in the mediation process. It should be the norm, not the exception. This kind of communication is what allows parties to understand the conflict from the other side's point of view, and to find out what is most important to them, which is what opens the door for breakthroughs. And these face-to-face encounters can also allow parties to achieve genuine satisfaction and healing, rather than settling for just settling out of necessity to avoid an even more unpleasant litigation process.
It's still an uphill battle in many cases, however, to persuade mediation participants of the benefits of joint sessions, so I agree with these authors that we should do more to resist the slide of mediation into a caucus-only model, and to help consumers of mediation appreciate the benefits of joint sessions.
By Joe Markowitz