can be an extremely effective tool in the mediator’s toolkit.
Of course, the joint session should be modified to meet the
needs of each case and, if appropriate, as previously indicated,
dispensed with only if the cases so warrant. The basic premise behind the joint session is that the clients should have the
chance to speak. In fact, this might be the only opportunity for
a client to speak outside of a courtroom or deposition — both of
which allow only much more limited and controlled statements.
This is a time for the clients to have a proverbial seat at the
table. When clients have the opportunity to have a voice and
advocate their own positions, without the filter of an attorney,
additional facts, opinions and important issues come to light
and can affect the process positively. Also, allowing clients to
hear the other side directly can be very illuminating for them,
allowing both sides to see the issues through the other’s eyes.
Both clients and attorneys determine their strategies in
response to the positions taken by the other side. In mediation, that decision can be affected by the manner in which the
message is conveyed. Thus, both the lawyers and clients can
assess the sincerity of the other side’s story or belief in and
commitment to their side of the case, as well as understand
why they feel justified or aggrieved. You can also evaluate your
own client’s ability to project as a credible witness in an open
forum and extrapolate toward a courtroom setting; this cuts
both ways, for both your and the other side’s client. During this
time, the legal arguments take on a life of their own and can lead
to a more personalized and successful process.
It is important for the mediator to control this process diligently. Prior to the joint session, both in writing and in separate
calls, mediators should emphasize the proper nature of the presentations to be made: they are to be settlement-focused, and
the client should be allowed to actively participate and speak.
This is a collaborative process, and the parties can (and should)
identify the key areas of concern, voice their grievances and
try to focus the discussion so as help the other side “
understand where they are coming from.” Clients should focus on
needs, not wants. Commonly this face-to-face dialogue helps
each side learn something new about the other’s position. The
joint session is also a chance to present each side’s version of
the issues to the other. While the joint session is not a time for
argument, it is a time for one party to express the basis for its
position in a manner that provides the other side the opportunity to understand the basis for that position.
Mediators should also discuss who will be present at the joint
session, or perhaps who should not be present. For example, at
times, the existence of an intractable personal conflict between
two individuals might preclude resolution of a conflict, while
involving others with authority might accomplish resolution in
a more peaceful manner. Encourage the parties to give careful
thought to what information to bring, collect and have available, such as demonstratives in appropriate cases.
Moreover, the parties might have existing longstanding rela-
tionships with one another. They may have things that not
only need to be said, but thoughts on constructing a resolution
that might facilitate an ongoing relationship. At times, parties
have been creative in resolving their differences by speaking
to one another and compromising on current or future deal-
ings in order to resolve the dispute at hand. This is done much
more easily without their lawyers trying to negotiate basic deal
points or shuttling back and forth with a number exchange.
This gets to the original purpose of mediation and the joint ses-
sion, allowing the parties to speak and trade items, or dollars, in
order to resolve the dispute.
Moreover, the joint session is not just for the parties to
assess each other. Rather, the session also allows the mediator to assess the dynamics among the parties and get a read
on how they interact with each other and where they are
entrenched in a position, or what things matter most to each.
This can be helpful in determining how to manage the process
during separate caucuses, as well as finding a path to move the
negotiation process toward a resolution.
All these factors are not readily apparent outside a joint session and interplay among the parties. Separate caucuses only
show a window into one side of the negotiation process. The
mediator’s job is not to serve as counsel to the parties, so
incompetent lawyering cannot be fixed by the mediator, such as
by suggesting defenses to one side or claims to the other (that
would be a remarkable breach of ethics by a mediator). However,
the mediator can manage evidence of implicit bias that might be
adversely affecting the process and manage the parties so that
hot personalities do not get in the way of the process.
Despite the foregoing, there are indeed times when a joint
session should be skipped, as when the exchange of vitriolic or
threatening messages might lead to a breakdown in communications and of the settlement process. However, such sessions
are still a valuable tool that should not be lightly pushed aside.
The session should be used judiciously when it serves a purpose, and not by rote. Mediation is a client-driven process
that allows the chance for clients to create a solution that
meets both of their needs more effectively than what might
be achieved in court. Allowing this forum for open dialogue and
assessment of each side’s position is invaluable to resolution.
Always keep in mind the “four C’s of effective mediation”: civility, cooperation, creativity and collaboration. The joint session
can be an excellent place to ensure that these four concepts
are embedded in the mediation process.
Both clients and attorneys determine their
strategies in response to the positions taken
by the other side. In mediation, that decision
can be affected by the manner in which the
message is conveyed.
FIRST PRINCIPLES OF CONFLICT RESOLUTION