Sophisticated ADR users increasingly instruct their neutral to skip the joint session and get down to business. They have grown weary of listening to tiresome opening statements and wary of encountering angry outbursts. Yet for some types of conflict – contentious trust litigation, high conflict divorce, clashing neighbors and emotional partnership disputes, to name but a few – the joint session can be the perfect tool to get the job done. It may seem counter-intuitive to place embattled participants in the same room and expect a peaceful outcome, but here is why it can work:
The parties have experience in settling problems between them. Take the example of warring adult siblings. These parties undoubtedly have decades of experience in solving family problems large and small. They have worked out ways to settle every prickly dispute from, “Who has to sit in the middle seat?” to “When should we put Dad in the home?” In a mediation setting, their experience in settling their own problems can be an invaluable asset in finding the best solution for them.
The parties (secretly) wish to resolve the emotional aspect of the conflict. Whereas a personal injury plaintiff would likely not care whether his antagonist’s carrier overpays to settle a case, a divorcing spouse might well worry that the soon-to-be-ex won’t be able to squeak by on the proposed property division. It may be very important to participants that the settlement is viewed as fair to all sides. It is common in divorces for the parties to feel shame at their failed marriage. A joint session where parties are working on the problem together can address all of these concerns.
The parties will have an ongoing relationship. A lot of conflict involves parties who will never see and who never want to see each other again. But in cases where parties have an ongoing relationship, a civil and orderly joint session can set the framework for future interactions. Take the example of the heated neighbor dispute. A separate-caucus mediation might resolve where the fence is placed and what trees are planted, but what happens when the fence needs painting and the trees block the view? A well-run and respectful joint session might set the stage for future communications, enabling the parties to have a template for how they may solve the inevitable problems that arise in their future.
Admittedly, the joint session of an emotional case might feel nerve-wracking and uncomfortable at the outset, but the neutral will ensure that communications are respectful, outbursts are minimized and focus on the issue is maintained. In this way, estranged relatives may offer forgiveness, spouses may shed tears and business partners may shake hands.
In the right case, the joint session takes care of business – and then some.