- Conviction. A mediator cannot convey information with the same conviction as you, the party’s own lawyer. You have the duty of undivided loyalty to your client, the obligation of zealous advocacy, the benefit of months or years of familiarity with the case. Who is in the best position to deliver your message with conviction, passion, and resolve?
- Confidentiality. Lawyers generally give mediators a mix of confidential information and information that can be shared. The line between the two is often blurry, and can change depending on which way a conversation goes. Who is best equipped to decide whether, when, and how to maintain that line as a conversation progresses?
- Questions. When a mediator delivers your message for you, pray that nobody asks the mediator a question. Who is most likely to expect the counterparty’s questions, and to know the best way to answer them?
The correct answer to all three questions is you, the party’s lawyer, not the mediator.
And, in terms of promoting progress in negotiations, the benefits of direct communication are similarly clear.
After a joint session, the mediator can adjourn to a caucus and can ask a lawyer, in the presence of the client:
Darrow, you heard Bryan make three points on Issue X. Let’s talk about them. Which of them did you find most concerning?
Darrow and the mediator can then have a conversation about what Bryan had to say. Darrow may even acknowledge some concerns. This is well-designed to affect the client’s thinking, and lead the client to consider settlement possibilities the client had not previously considered, or at least not previously considered seriously.
By contrast, consider how much less well-designed it seems when the caucus takes place without the benefit of the preceding joint session:
Darrow, you know Bryan has three points on Issue X. Let me describe them as presented in Bryan’s mediation brief: Point One, Point Two, Point Three. What are your responses?
When the mediator is constrained to speak in Bryan’s voice, the mediator becomes less the narrator and more the sponsor of Bryan’s points. It looks less like conversation, more like argument. And let me tell you, in the eyes of a client, no mediator has ever won an argument with a lawyer. Ever. That’s because clients understand that their lawyer is 100% on their side, and the mediator is not. When the mediator leaves the room, the Darrows of the world say to their clients, “Don’t listen to the mediator. Listen to me. I’m here to fight for you. The mediator is just here to squeeze out a deal.” The opportunity to influence the client’s thinking and generate progress toward settlement is wasted.
Underlying all this is the need for the mediator to manage the process properly. A skilled mediator will not plunk everyone in a room for a joint session and ask the lawyers to bring it on. That’s so 1990s! And that approach led to the joint session’s demise. No, a skilled mediator will read the briefs, talk to the lawyers, and set a narrow, tailored, focused agenda for the joint session. That agenda will consist of issues the parties can discuss in each other’s presence without excessive risk of conflagration, and then take into caucus for the kind of issue-oriented conversation described above.
Of course, some cases present circumstances that dictate a caucus-only, shuttle-diplomacy approach. When mediation skill is applied, though, the number of those cases is far smaller than you might think.
If you welcome direct communication as appropriate, you’ll have better mediation experiences, and, with a little luck, get more cases settled and have happier clients.
When I was first mediating, I tried to have every case start in joint session and encountered strong resistance. “Rachel, it was hard enough to work with them to agree on a mediator, everything else is going to be 1000-times harder, let’s just get started and not waste time.”
“Joint session” means many different things and is used in many different ways, and still, most frequent participants in civil (non-family/marital) mediation refuse the opportunity to meet with the other side at any time in a mediation session. Polls of mediators show that joint sessions are declining across the country with their least use in the West and their greatest use in the East. [See, Joint Session or Caucus? Factors Related To How The Initial Mediation Session Begins. Wissler & Hinshaw, Ohio State Journal on Dispute Resolution Vol.37.4: 2022; and see, The Shrinking Joint Session: Survey Results. Folberg, ABA Dispute Resolution Magazine, Winter 2016.] I won’t further refer to these articles and the studies about which they report because this piece is better spent discussing why joint sessions can be useful.
Since “joint session” has a negative connotation for some frequent participants in mediation why do mediators encourage agreement to participate in opening joint sessions? Because mediators know that an opening joint session can benefit the goal most people have coming into mediation, settlement. The time a joint session takes is only wasted if it doesn’t ultimately serve the ultimate goal of the mediation session, i.e. settlement, then or later. Usually joint sessions, even the swift “meet and greet”, serves the ultimate goal because it is harder to vilify people who you can picture. Better still is to at least do a short ice-breaker in the joint session because it gives each of us a little more insight into the others as normal people, not single-issue automatons.
Joint sessions are efficient forums to convey information directly to the other side(s). People on the defense side are frequently in joint session but rarely think that they are – in mediation of an underlying third party claim against an insured party, when there are coverage issues the insured and carrier are usually still in the same room because their interests are aligned in trying to resolve the third party claim. During the course of the mediation session the carrier or insured parties may step out to caucus with their counsel and may even caucus with the mediator about the coverage issues but usually they spend the bulk of the mediation session together, discussing and often working out a resolution to their coverage dispute in addition to the third party claim. I mention this in the hope that it will help skeptics realize that they are power users of joint sessions and perhaps come to embrace the joint session when it isn’t just by necessity.
By design, joint sessions if they are going to be more than a perfunctory “meet and greet” need to have something else about which to talk. You can contract with your mediator regarding what that might be, as the topic can bear no relationship to the subject matter of the mediation. Or it can be a conversation in which each side has an opportunity to address some key aspect of the dispute about which they are looking forward to hearing the other side’s perspective, or it can be a working session that goes through particular issue with the mediator moderating.
Another angle: Sometimes it helps people to think of the joint session less as the traditional settlement conference style that begins with a light “opening statement” from each side and to instead think of it as a “curated conversation” in which the mediator sets the table for the agenda and asks each side to address certain subjects. To ask that people listen and to indicate that the opportunity for response may be given by the mediator during the time everyone is together or the mediator may decide to hear responses in caucus.
You have the power to participate in mediation however you wish. Talk with your mediator in advance, know your client’s preferences regarding a joint session, and consider including your client in a pre-mediation-session call in part to talk about the possibility of a joint session. Some mediations should not have a joint session, but most will benefit from a joint session of at least the attorneys.
Consider having a joint session in your next several mediations, you might just find them helpful.