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  • Writer's pictureJonathan E. Pearl

Don't Kill The Joint Session in Mediation!

The Joint Session comes in for a lot of criticism:

· The joint session is increasingly unpopular in the U.S. Which is partly driven (IMHO) by the parties’ lawyers fearing the lack of control.

· Yes, it can be uncontrolled and run off the rails. Nobody knows for sure what will be said, and what the tone will be.

· It's true that it’s difficult and risky for the mediator to “reframe” a party’s position in joint session without appearing to be partial.

· Without prior coaching, a joint session can make the parties’ positions more entrenched than they were before.

· The joint session can also be overwhelming for parties in employment discrimination, whistle-blower, and physical, sexual and elder-abuse cases where the claimant may be uncomfortable to be in dialogue with, or even in the same room as, the alleged perpetrator.

But the joint session has some great advantages:

· The joint session is at the heart of what mediation is all about. It gives parties the opportunity to lay out their perspectives and address and listen to the other party directly: in a respectful, confidential and structured environment.

· It allows the mediator to set the tone of the mediation with all parties present, helping to ensure all participants are on the same page and understand each other’s expectations and standpoints.

· A joint session allows the mediator insight into both parties and how they interact with one another, which may lead to a more efficient process and ultimately, settlement.

· Where the parties need to continue to work together, a joint session approach demands that the parties communicate with each other in order to better understand the other side’s position.

· The joint session is an opportunity for the parties to engage in 'small talk', which may help to humanise the other party, and create empathy and trust. They may realise that they have more in common than they realised, and re-evaluate their demands accordingly.

· A heartfelt apology in joint session (particularly an early one) can go a long way towards healing a long-standing rift.

· The joint session allows a very angry party to vent pent-up feelings without any filtering by his/her advisers. This can be cathartic to that party, and also informative to others present.

· The joint session allows parties to ‘fill the (awkward) silence’….which can greatly aid the mediator in finding a resolution.

· The joint session allows the parties to exchange key information, creatively explore resolutions to difficult problems, and size-up opposing lawyers, parties and experts.

· Joint sessions can be very helpful to mediators where there are multiple parties, and possibly multiple issues.

· Many lawyers believe their goal is to persuade the mediator, who in turn will persuade the other side. But it can be more effective to directly persuade the other side through an opening statement coupled with compelling evidence, a power point

presentation, photographs, video presentations, key documents or witness testimony. The joint session is an ideal place to do this before the trial.

· Finally, the joint session is often the quickest and most efficient means of finalising a draft settlement agreement.

What’s your experience?

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