Joint Sessions in Mediation: Never Say Never

Remember joint opening mediation sessions? They used to be standard fare. Now, few mediators and fewer parties want to have one. Why? Because everyone has experienced them done poorly. No one wants to mount that bucking bronc again.

Nothing can derail a mediation faster than a fire and brimstone jury argument or an insulting and demeaning lecture to one who has suffered tremendous pain and injury (and months or years of frustrating litigation) made at the beginning of the day. At best, the mediation can be salvaged with some time and effort. At worst, it never goes anywhere. But does that mean that we should never get the parties to a mediation together?

One of the benefits of mediation is that it provides the parties with a confidential opportunity to speak directly to each other.

That simply doesn’t happen in litigation, at least not in a setting managed by a third-party neutral. A joint opening session is a great time for apologizing, explaining positions, asking and answering questions informally (even those which are irrelevant in a legal proceeding), and humanizing a corporate client. If you’ve seen or experienced one done well, you know what I mean.

Allowing the parties to sit in the same room together without saying anything at all is quite powerful when it comes to laying a good foundation for negotiation.

Hearing a mediator’s orientation statement or introduction together at the same time communicates a very powerful message. It conveys the mediator’s independent, neutral, third-party status. It demonstrates a level playing field. It humanizes those demons on the other side – lawyer and client. They are human beings.

We are quick to say that the parties cannot get together. “That would be a disaster.” “They can’t stand each other.” “There is a lot of history there.” No kidding.

They are parties to a lawsuit, an adversarial, expensive, frustrating, unrewarding, inefficient, and mysterious method for resolving disputes. Not to mention the fact that there is an underlying conflict between them. But if they can’t even sit together in the same room (keeping their mouth shut) to hear how this process is going to go, then what are we saying about the likelihood of negotiating a win-win solution to their problem?

A joint session at the beginning of the day isn’t right for every mediation. But perhaps getting the parties together later in the day makes sense.

Again, not for the parties to aggravate each other, but simply for them to hear from the mediator the same message at the same time. Maybe it would help later in the day, when each side is feeling pressure from the process but believes that they are the ones receiving more pressure than the other side.

It is important to have ground rules for any joint session. No one likes surprises. What is going to happen there? What is expected of us? If no one is supposed to talk, then the mediator must enforce those rules.

If your mediator doesn’t mention a joint session, there is nothing saying that you can’t. Again, they aren’t right for every case, but I think we’ve fallen into the trap of saying that they are never helpful. And that is a mistake. Remember, you are paying the mediator for help, guidance, experience, and assistance. Use it! Listen to the mediator if an opening statement is discouraged, but also listen if it is suggested that the parties should get together to speak directly. Or suggest it yourself. It’s a powerful tool that is often overlooked.