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Ruling out a joint session in mediation - What are your thoughts?

Under what circumstances should mediators rule out convening mediation participants in joint session?

Please provide your thoughts/comments below.

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

Comments (14)

William G Bassler:

I do not think there is a hard and fast rule.
I play it by ear and sometimes the dynamics seem to indicate an opportunity to move forward when everyone is in the same room.
On the other hand I have seen situations where it didn’t help at all.
Nice to have a bright line but there doesn’t seem to be one.
Judge Bassler

Ernest Badway:

I am not sure it is worthwhile to ever convene a joint session other than to discuss certain procedural issues. Any substantive discussion usually leads to more angst among the parties, and not productive towards the ultimate resolution of the matter. Yes, I understand the counter-argument that “sometimes” the parties should hear what the other side has to say. However, I would argue that is what the mediator is for, who can convey the message, and move the settlement process along.

Judge Gerald Harris :

Joint sessions for which the mediator has adequately prepared the parties should be favored. It is often useful for parties to hear the positions of adversaries and to have an opportunity to voice their own or hear them articulated by their advocate. It also gives the mediator an opening to work issues through with both sides present. Of course, joint sessions are not advisable when it is apparent that feelings are running too high or one or both parties are insisting upon extreme or unduly provocative positions.

Pat Westerkamp:

When I mediate my preference is for at least one joint session.

I never "rule out" joint discussions based on a preconception, or standardized practice that they are always inappropriate under particularly circumstances. Any decision that a joint session would do damage to the process, or to individual participants should be made only after full discussion with the parties' representatives.

Pat Westerkamp, Accredited Professional Mediator

Deanne Wilson:

When I suspect that a group meeting will inflame one or both of the parties or when I suspect that one or both counsel will inflame the adversary counsel or parties, I wait until a few caucus sessions have afforded me the opportunity to more fully assess the situation. No sense in causing tempers to flare when the goal is a consensual agreement.

Even when I have no suspicions in that regard, I carefully observe all individuals during the first joint session to ascertain any difficulties and reduce them before they start by casually ending the joint session and separating the parties.

Anonymous:

I never rule anything out. Period.

I always have at least an opening joint session. When counsel first contact me I am very insistent upon that and let them know that I strongly encourage the parties to speak ( not counsel) at the session. Almost all cases that come to mediation have an emotional component, even strictly commercial cases, and for the mediator to engage in affect labeling ( the identification of emotions such as anger, hurt, frustration, etc.) the parties need to speak and "get it out" so that they are then able to move on to the resolution process.At the very least, the plaintiff needs to speak. In matters where the defendant is an insurance company they rarely make a presentation.

In unique situations ( i.e. family based disputes) the joint session could be a problem if the parties absolutely refuse to sit in the same room with each other due to the level of animosity. Only in those instances would I abandon the joint session.

Anonymous:

Most lawyers for whom I mediate do not want a joint session, or at least don't want to make opening statements. Joint sessions should be avoided when there is so many emotional issues among the parties. Otherwise, I sometimes have, as others have mentioned, a "meet and greet" in which I promise help, tell them where the restrooms, soft drinks and coffee can be found, and tell or ask them about lunch arrangements.

I have seen opening statements made awfully well, and actually help the process. I have also seen the opposite. I usually leave whether to have them up to counsel.

Stephen A. Hochman:

When I convene a mediation, I tell the parties we will start with a joint session where each side can explain its positions and/or interests to me and, more importantly, the decision maker sitting across the table. In the rare case where one or both parties objects to a joint session, I try to convince it that it is missing an opportunity to present its case to the decision-maker across the table. My role in the joint session is primarily to listen and learn and, when necessary, to maintain order. I save my reality testing questions relating to the merits of the dispute for the caucuses. I also explain that my job in the caucus is to focus each party on what I perceive as its weaknesses because they tend to overweight their strengths and downplay the weaknesses in their case. We know that those with a stake in the outcome cannot be objective about the issues in the case and have advocacy bias, confirmatory bias, etc.

Anonymous:

I will skip an opening joint session that includes all adverse counsel and adverse principals only in rare instances when the parties' counsel inform me ahead of time that the parties have so much animosity toward each other that even a very brief joint session may lead to a prompt breakdown of the process. In most mediations, however, I believe an initial joint session is helpful to provide me an opportunity to both discuss the overall mediation process together with all parties and counsel and to also give me a chance to carefully observe how counsel and the parties initially address and respond to each other – while in the same room.

Since I always have at least one preliminary phone conference with all party counsel before we meet in person, I will try to determine during such a phone conference, or during an initial private office meeting, whether a joint session with all party representatives is more likely to hinder, than advance, the prospect of a healthy mediation process.

I never rule out a joint session and have held one in every mediation I have handled. It is extremely valuable for me to observe the interaction of the parties and for them to tell their stories to each other. As Mark Bunim suggested in his comment, party participation in openings is usually more factual and valuable than the posturing of the lawyers. I also always serve lunch in the conference room which provides additional opportunities for party interaction. If there are any emotional outbursts, which happen occasionally, either I or the lawyers deal with them on the spot. I try to keep the parties together as long as possible before going into caucus. To me, caucuses, particularly long ones where the other party is languishing in the dark, often lead to more hard feelings than joint sessions. Finally, I always insist that everyone shake hands at the end of the session, whether they have settled or not. This is common courtesy and may lead to progress in any further discussions.

Because I have extensive pre-mediation discussions with counsel and, sometimes, the parties, I do not find joint sessions at the outset of the formal mediation helpful. But, frequently, there are particular factual issues about which the parties have differing views that lend themselves to being discussed and perhaps resolved by a direct exchange of the parties, without attorneys, which I convene and supervise. In addition, in B-to-B disputes, where on-going relationships are still possible, I always look for an opportunity to put the parties together to discuss how to create a new business relationship out of the existing one, and wrap a settlement into the new understanding. Bottom line: joint sessions can be useful but you have to pick your spots to avoid having anger and rancor get in the way of a resolution.

Judge C. Raymond Radigan:

I think the initial meeting should be joint for the mediator to explain what the procedures are and for the purposes of getting any clarification from the attorneys and parties that may be needed unless it is anticipated that a joint meeting would invoke further hostilities. In that event, when the mediator meets separately, he or she can ask for clarification. I would then meet individually with the attorneys and parties and, when necessary, bring back to each side points that may have been raised in discussions with the attorneys and parties on the other side. This should continue until there is an agreement or there is an impasse.

From experience, after meeting with the parties, a mediator should be able to determine if the matter is not settled, whether a joint meeting would then be beneficial. However, generally an agreement, if any, occurs after consultation with the parties and attorneys individually. If we have a settlement, I would then call a joint meeting to explain the settlement and to get their agreement. Again this should be done unless a mediator can sense that this will only provoke the undoing of a settlement.

If mediation is unsuccessful, the mediator should explore with the attorneys whether it would be beneficial to have a joint meeting to discuss the reasons why the mediation could not result in a settlement. In many instances I have found that this will bring about a settlement. However, each mediator will have to sense when joint meetings would be beneficial or when they would only force further hostility. There can be no set rule as a mediator must get a sense of what will work or not.

Edwin H. Stern:

In a mediation (I am not on the AAA mediation roster), I generally start with a joint session for several reasons that I find productive and beneficial.

First, all parties know and hear the same thing about the ground rules and procedure and my view of the mediation process. They appreciate that I am not saying something inconsistent or helpful to an adversary “behind their back” about how I will approach and handle the matter.

Second, they hear what I am saying of a general nature about the case, and again appreciate that I generally say something they want to hear about their case and the adverse party’s case, as I acknowledge risks to both sides of an adverse ruling in court, after the payment of greater fees and costs, and that a known resolution (although giving up something) is better than an unknown result that can be much worse.

Third, and perhaps most importantly in many cases, when the party or counsel speaks directly to the adversary, he or she gets a chance to “vent,” which is occasionally therapeutic, and being able to say something a party wants the adversary to hear (and being positive it was said and heard) is a very positive break in the barrier to success. Of course, each case is different, and direct confrontation can cause problems as well, so I always ask counsel to advise me before the outset of the mediation as to whether there should be a joint session or even one with only opposing counsel present, without both parties in the room, so the parties know their counsel are addressing the adverse party and counsel, and saying what the party wants to make sure is said. Again, depending on the pre-mediation conference with counsel, some of that is pre-screened with the attorneys so it is not counterproductive. But, unless there are emotional problems by a face-to-face meeting with the parties, I have found the procedure to be helpful,

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