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During a joint mediation session - What are your thoughts?

Should mediators orchestrate 'who says what' during a mediation joint session?

Please provide your thoughts/comments below.

Thank you to Harold Coleman of AAA Mediation.org for this week's question.

Comments (7)

One of the unique benefits of a joint session is that a party and its counsel may hear something differently if it comes directly from the other side and not through the mediator. So, after developing some understanding of what would be constructive, a mediator might suggest points that would be good for the other side to hear directly. This can sometimes break through negative thinking and help the listening side understand that something is actually possible.

Anonymous:

Yes. Counsel should be encouraged to be conciliatory, without sounding weak, and not incendiary.

Absolutely. The mediator is the "conductor of the orchestra." The parties play the instruments.The mediator, after reviewing the pre-mediation submissions should know what will work best to accomplish the sole mission of the mediation--a settlement agreement; and accordingly should help design the parties' joint session presentation.

Charles Shaffer:

Not orchestrate, but sometimes you realize that the parties have questions that the other side should answer and it would be better if they discussed those questions directly, rather than the mediator carrying messages back and forth.

Charles Shaffer:

Not orchestrate, but sometimes you realize that the parties have questions that the other side should answer and it would be better if they discussed those questions directly, rather than the mediator carrying messages back and forth.

Ruth Raisfeld:

We as mediators need to be aware of the trend that litigators are doing whatever they can to avoid joint sessions at the beginning of the mediation. This is due in large part to the mishandling of these opportunities. The mediator should discuss whether and how to conduct a joint session prior to the mediation itself and coach the attorneys how to best participate in this process or go right to separate caucuses.

Anonymous:

Not orchestrate but encourage each party to address the other directly on issues they deem significant, so it is stated exactly as the party wants it to be said and the party knows it is said precisely as desired. Often a party is more willing to settle because he or she has had the opportunity to say what he or she wants to make sure the other side hears----by the party himself or herself or through counsel. A joint session at the outset can also be helpful by having both parties hear directly from the mediator and understand that he and she is saying the same thing to both or all parties. Another benefit is that the parties can hear the zeal and belief of the other party in its case. (Of course, each case is different and there are occasions when a joint session with the other parties present can have an adverse impact for some reason or another so, during the pre-mediation telephone conference, I always discuss whether to conduct a joint session at the outset of the mediation and,if so, the procedure to be utilized. And I try to note there are strengths and risks on both sides to encourage a result the parties can live with, whether they really like it or not, as opposed to the risks and uncertainty of litigation and disposition that could lead to a more unsuccessful result.

PS: My experience is with mediations other than through the AAA, as I am not on the mediation roster.

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