Recently, I was interviewed about the usefulness of joint sessions. In the article, published in the “Daily Report”, Mediators Talk ‘East v. West' Split Over Use of Opening Sessions to Lay Out Disputes, there were contrasting views given by three other mediators from different parts of the country. The premise of the article was that there is a difference of opinion based upon geography. My impression is that everyone is all over the map on this issue. Some are strongly in favor, some strongly against and some in the middle like myself. That is not a Solomonic cop-out. Attorneys who have been litigating cases for years are in the best position to judge whether a joint session is worthwhile or not. There is no rule that there must be a joint session at a mediation. Every case is different. A mediator should maintain the flexibility to always work in a way that will best serve the process.
With that introduction, attorneys often waive the joint session without considering the benefits.
The most common reason expressed for not wanting a joint session is that both sides believe they know everything about the other's case. Nothing could be further from the truth. Where the parties have waived a joint session, inevitably it is revealed in the breakout sessions, that they do not fully understand the other side's position. There are facts or arguments that they are unaware of. The mediator is now acting as a conduit of new information. Valuable time is wasted clarifying positions in the breakout sessions and, in many cases, holding a belated joint session.
If the joint session consists of nothing more than the parties introducing themselves, it is worthwhile. A common occurrence when the joint session is waived is not knowing who all the players are on the other side. A mediator is then asked who an unidentified person(s) is and their role. Often this is a key decision maker who is maintaining a low profile. You should know the answer before you begin negotiations. In many cases the parties have not met in person previously. This is an opportunity to at least some extent, assess your adversaries.
Generally, the mediator prepares a written summary of the parties' submissions. This is then used to orally convey what he knows about the case during the joint session, without breaching confidentiality. The parties are given the opportunity to tell the mediator if he got it right or wrong and to highlight or add additional information. This also allows the mediator, again without breaching confidentiality or prejudicing a party, to clarify positions. The parties share their contrasting views, if not for their benefit, then for the mediator's. On a personal note, I have never viewed myself as infallible, either as a judge or as a mediator.
One of the other reasons for waiving a joint session is that it merely becomes an opportunity for counsel to grandstand for their clients, and that it can often cause more harm than good. If counsel believes for any reason that the joint session could be harmful to the process it should be waived. If a joint session seems to be headed in that direction, a capable mediator will simply end it. Further, counsel has the option of doing so.
Without exception attorneys who grandstand, in their hubris, inevitably give up valuable information to opposing counsel. Those who are in love with the sound of their own voice, inadvertently leak information to the benefit of their adversary. Further, one of the most basic strategies of negotiation is to gather information. Anytime anyone is willing to talk about their position, even if they think they know it all or have heard it all, must simply listen. There is no downside.
All too often attorneys are obsessed with advocating their position and simply do not listen attentively. Give your adversary the opportunity to speak. Sit quietly and listen even if what is being said may rankle you. A mediation is not a trial. It is a negotiation process that is based upon the exchange of information. You have two ears and one mouth. Listen twice as much as you speak.
As was stated in the beginning, there is no rule that a mediation must have a joint session. The mediator is not a judge who can compel counsel to do something that they believe is not in the best interests of their client. However, virtual communication has conditioned us to avoid direct communication such as in a joint session. Consider whether there is still value in looking someone in the eye and telling them what you think.