In the basic mediation training courses the joint (or general) session is part of the model. We start off in a joint session, allow the parties to exchange their thoughts in a polite manner, practice our active listening skills and take lots of notes. So, mediators, in what percentage of your mediations do you have a joint session? I’ll bet not many. Why not? Counselors, what are your objections to having a joint session? The purpose of this article is to discover some of the current literature on the use and dis-use of the joint session, and make some suggestions about why to have them, and how to have an effective and reasonably comfortable joint session.

It is not my belief that all mediations should have a joint session, nor that very many mediations should be conducted entirely in joint session. My thesis is, nonetheless that the joint session needs more respect and more use. Not every problem is a nail so we need a more complete toolbox. I will begin by surveying some recent articles.

A review of recent commentary

Prof. Lula Porter Love has observed “… that dialogue is currently dying or impoverished, even on the political scene. Mediation, she said, “is the last bastion,” with mediators trained to promote dialogue. But even in mediation, there is “less and less mandate for mediators to bring parties together into joint sessions.”” And she made some telling observations based on surveys that she studied:

the use of caucus has shown that parties are more likely to file an enforcement action based on their settlement

the greater the percentage of time participants spent in caucus, the less likely the parties were satisfied with the outcome

mediators who do not use joint sessions primarily do not do so because attorneys do not want joint sessions

 “People in conflict are really angry at each other and they don’t want to see each other,”

Prof. Love concluded by stressing that listening helps settle cases, and it is important in helping people tell their stories. The mediators who seek to identify the parties’ interests perhaps are doing only one aspect of the process, noted NYLS ADR Skills Program Director and moderator F. Peter Phillips, who added that mediation might be better handled if the emphasis was on all parties listening and working to understand one another. 

Love’s new mediation data: Whither the joint session? (2021, January 15). Mediate.com. https://www.mediate.com/articles/akande-mediation-data.cfm
Taken from an article byTemitope Akande published on Mediate.com. His article was based on New York Law School’s Alternative Dispute Resolution Skills Program featuring mediator Lela Porter Love, a law professor and director of the Kukin Program for Conflict Resolution at New York’s Benjamin N. Cardozo School of Law.

With tongue-in-cheek Paul Rajkowski presides over The Death of Mediation – An Obituary, in another article on mediate.com. Why his the traditional method of a joint session died? His observations include:

[A lawyer] said many of his clients should have been allowed to work together in the same room but the mediator would not do it

[in traditional mediation] the knowledge of the mediator was not in the law or the subject matter, but in knowledge of people, knowing how to read people and how to work to keep the parties moving to an agreement, knowing when empathy was important and how to handle impasse

The death of traditional mediation – An obituary. (2020, May 18). Mediate.com . https://www.mediate.com/articles/rajkowki-obituary.cfm
Taken from an article by Paul Rajkowski published on Mediate.com.

Various objections may be lodged to joint sessions, some of which were chronicled in this article:

Joint sessions are a waste of time

blocked us from doing one because the other side would not agree

“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.” 

Objections to joint sessions. (2018, January 12). Mediate.com. https://www.mediate.com/articles/markowitzbl2018112.cfm
taken from an article by Joe Markowitz published in mediate.com.

Note that last article was from 2018. Indeed, from almost the beginning of my mediation practice in 2013 I met resistance to the joint session. There I was, freshly taught and prepped to use that joint session skill that I had so carefully learned just months before. There it was laid out before me, dead as a door nail. And I have continued to meet resistance, and have tried to understand why and to devise the better mousetrap. The preceding article by Joe Markowitz offers a few suggestions that I think to be good toward rejuvenated and effective joint session. But first let’s discuss some of the negatives of the caucus methodology. I can’t say in any better than did Joe Markowitz in his article:

[to the retort that a general session is a waste of time] 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.

id.

What if we proceeded with different ground rules for a joint session that precludes those things that are the usual basis for an objection to such a session? A joint session that I had which did not go well, simply for the fact that I did not maintain the control over it that I should have including the plaintiff’s lawyer making both his opening statement and closing argument to the (imaginary) jury, complete with PowerPoint. If a main objection to joint sessions is that they tend to make the other side angry, then this lawyer had that down to a perfection. We settled that in spite of that demonstration, but barely. So how could a joint session be structured to be effective?

Toward an effective joint session

I think the following guidelines could provide the basis for an effective joint session for most types of cases.¹

• have a clear, written understanding of the protocol in advance
• the mediator should remind all parties and their counsel that they are each present feeling that they have a strong position and good law, but the fact is we will learn pluses and minuses from each of you
• have the presentations factually based as opposed to argumentation and persuasion. Require an even toned “matter of fact” presentation of facts and legal positions.
• elicit advance agreements not to argue with one another in the jointsession
• posture the entire mediation as a process of communicating and understanding
• perhaps follow the joint meeting with factual exchange with caucuses to allow reflection and discussion time
• which could then be followed by another joint session or presentation of an offer and this time could include brief discussion for any clarification that might be needed in order to fully understand the offer
• followed by caucus with reflection time and thereafter leading to another joint session to discuss the counteroffer.
• And so on….

Of course, the particulars should be tailored to the particular case and mix of parties (and lawyers). Those who have mediated with me know that I sometimes reach a point where I am being asked to become more the advocate than the neutral in presenting arguments to the other side. When that occurs I pulled the lawyers aside and let them make those arguments directly. I’m not at all to be evaluative in an appropriate manner. However, it is not effective for the mediator to simply bounce between rooms tossing out arguments.

footnotes: