Summary
Despite recommendations to tailor mediation structures to individual cases, most mediators consistently use the same approach—driven more by habit and local norms than by the specifics of each dispute
Dispute Resolution Magazine
The Role Different Factors Play in the Use of Initial Joint Sessions or Initial Caucuses
Luis Alvarez via Getty Images
Jump to:
For the past decade or two, mediators, lawyers, and frequent mediation users have been debating whether the first formal mediation session should begin in joint session or separate caucuses. Although some argue that one structure generally has greater benefits than the other, many say that the best practice is tailoring the initial session to the individual case rather than using a “one-size-fits-all” approach.
This discussion piqued our curiosity. We wanted to find out whether the pattern of mediators’ actual use of initial joint sessions versus initial caucuses is relatively uniform or is more varied across their caseload. We also wanted to examine what role different factors play in deciding whether to begin the initial mediation session in joint session or in caucus. We examined these questions using data from the online survey responses of 1,065 civil and family mediators who mediate in state and federal court programs and private settings in eight states in different regions of the United States.
Most Mediators Use the Same Structure in Most or All Cases
Almost half of civil and family mediators said they always use the same structure – either initial joint sessions or initial caucuses – in the types of disputes they typically mediate (see Figure 1). Nearly another half said they use the same structure in more than two-thirds of their cases. Only approximately ten percent of civil and family mediators reported more variation in how they begin the first mediation session. Thus, most mediators use the same initial session structure in most or all their cases.
Factors Related to How the Mediator’s Most Recent Mediation Began
We explored the relationship between many factors and whether the mediator’s most recent mediation began in joint session or caucus. Here, we report the findings for a subset of the factors examined: those factors most strongly related to how the initial mediation session began, as well as key case characteristics and other factors that had a small or no relationship with the initial session structure.
In both civil and family cases, the two factors most strongly related to whether the mediation began in joint session or caucus were the mediator’s usual practice regarding the initial mediation session and the state where the mediation took place. Thus, the two main influences on how mediation began in an individual case were not factors specific to the case itself, but were factors associated with the mediator’s general practice.
Two additional factors – who had the most influence on the decision about how the mediation should begin and the case referral source – were moderately related to whether the mediation began in joint session or caucus in civil cases and were strongly related in family cases. Approximately two-thirds of the mediators in both civil and family cases said they themselves had the most influence on how the mediation began.
By contrast, few case characteristics, including those for which either initial joint sessions or initial caucuses are recommended, were related to how the mediation began. In both civil and family cases, the following characteristics were not related to whether the mediation began in joint session or caucus: whether the disputants had a personal or business relationship before the dispute arose; whether the disputants expected to have future dealings after the dispute was concluded; and whether the case involved non-monetary issues or broader issues than those in the claim. In addition, whether the case involved harassment, coercion, or other intimidation, or unusually angry or emotional disputants, was not related to how the mediation began in either civil or family cases. Too few cases involved physical abuse or violence to be able to examine those relationships.
Some of the disputants’ goals for the mediation were related to how the mediation began, although most of those relationships were small. Notably, wanting to talk directly about the matter with the other disputant had a small relationship with how the initial session began in civil cases and a moderate relationship in family cases. Disputants’ goals of wanting to preserve or restore their relationship or wanting to end their relationship on amicable terms had small relationships with how the mediation began in family cases but were not related to how the mediation began in civil cases. Overall, disputants’ goals were more likely than case characteristics to play a role in how the mediation began.
When examined together as a group, however, these and other case characteristics and disputant goals had a stronger relationship with whether the mediation began in joint session or caucus than they did when examined individually; their combined relationship was moderate in civil cases and strong in family cases. Nonetheless, the relationship that the combined set of case characteristics and goals had with how the mediation began was smaller than the relationship that other factors – the mediator’s usual practice, who had the most influence on how the mediation began, and the state in which the mediation was held – had with the initial session structure. The combined set of case characteristics and goals had only a slightly stronger relationship with how the mediation began than did the case referral source.
Mediator characteristics, including whether the mediator had legal training, regularly served in non-mediation roles involving case evaluation or decision making, had served as a mediator for more or fewer years, or had a heavier or lighter monthly mediation caseload had a small or no relationship with how the initial mediation session began.
Conclusion
The findings discussed above reveal a divergence between, on the one hand, mediation practice recommendations and user preferences regarding the use of initial joint sessions and initial caucuses and, on the other hand, mediators’ actual practice. Most mediators begin the initial mediation session in the same way in most or all their cases, even though mediators are advised not to let habit determine process choices and frequent mediation users complain that mediators use a “cookie cutter” approach. Moreover, how mediation begins in an individual case appears to be influenced more by local mediation or legal culture and norms, as well as by the general preferences of the mediator and their usual case referral source, than by the characteristics of the dispute and the disputants’ goals.
Mediators and mediation trainers need to be aware of the actual patterns of practice regarding the use of initial joint sessions and initial caucuses and the role that different factors play in process choices. By being mindful of the influence that general customs and preferences can have on the decision about whether to begin the initial mediation session in joint session or separate caucuses, mediators and mediation participants can try to make a more considered decision about the structure of the initial mediation session by taking into account the characteristics and disputant goals in the instant case.
