“Joint sessions are a waste of time,” said the judge conducting a mediation in which I was representing one of the parties. In that mediation I was asking for a joint session, but the judge still blocked us from doing one because the other side would not agree. I’ll tell you what turned out to be a waste of time: that entire day of mediation in which I was assured that the mediator/judge would get the other side to agree to our side’s last proposal, but could not, leaving us with egg on our faces now that the other side knew our “bottom line” position and would use that as a starting point for the next round of negotiations.
What is a waste of time is waiting for an hour for the mediator to return from the other room, while our side stews in its own simmering juices wondering what is happening in there. What is a waste of time when the mediator finally comes back is that we spend another hour to try to persuade the mediator of the rightness of our position, because there is no one else in the room left to persuade. The mediator is not even a decision-maker in the process. Why are we trying to prove to him or her we are correct? Moreover, the mediator is trying their hardest to remain “neutral,” and is actively trying to be avoid succumbing to our entreaties. The mediator is instead thinking of counter-arguments to use against us. That is how a whole day can go by without making much progress. All to avoid “wasting time” talking directly to the other side.
“Joint sessions are a waste of time,” parties frequently say to me when I suggest them, pretty much every time I act as mediator. “Why?” I ask. “Because they just get people angry, because they just get people more entrenched in their positions.” I respond, “well what if we just use the joint session to exchange factual information, or what if we agree beforehand not to argue with each other during the joint session, but instead promise to listen to whatever the other side says and try to understand it. Not necessarily agree to it, but understand it.” Under those conditions parties and attorneys more often prove willing to try. In fact they are often intrigued that a joint session can be managed that way, and curious to see what might happen in those circumstances. Imagine how it has become a revelation to people to think of mediation as a process of communicating and understanding. Instead it has devolved into a process often at direct odds with those original goals.
But whenever we can manage to persuade people to talk to one another, we prove that the problem with joint sessions is that we are doing them wrong and we should try to do better.
By Joe Markowitz
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