There is a post on Victoria Pynchon's blog decrying the trend toward immediate separate caucus sessions, and the death of the joint session. This was a hot topic at the annual CLE session for mediators on the Central District settlement officer panel a couple of weeks ago. Victoria makes the point that joint sessions can help resolve a dispute not because they give everyone a chance to practice their arguments on one another and not because they allow people publicly to vent their feeling about the issues, but rather because they give the parties an opportunity, perhaps through the exchange of small talk, to see each other as human beings, and sometimes even to put aside talk of the money dispute that the parties are supposed to be there to resolve. It seems, paradoxically, that only when people can become less fixated on the problem that they are there to solve, that they can put that problem in perspective and allow themselves to resolve it.
I recently attempted in three hours to mediate a car accident case. Both sides were extremely anxious to retreat to their separate rooms, and cut to the chase of negotiation over numbers. Although I attempted to cajole them into remaining in the same room for a while longer, they both clammed up and insisted that they were ready for separate sessions. Once they did that, however, it became clear that neither side had a serious desire to negotiate a resolution of the dispute. Because the parties made no effort to establish any connection with one another outside of their mutual consumption with the same lawsuit, they also had no desire to reach an accommodation. Instead, one side walked out of the negotiation as soon as it became clear that the sides were far apart in their views of the value of the case. Could I have induced the parties to stay together longer, and find something to talk about? Perhaps not, but had we been able to do that, we might have reached a different result. Much as we all dislike remaining in a room together with people with whom we feel nothing in common, and with whom we have strong disagreements, it may be the very act of attempting to find common interests outside of the dispute that can enable the parties to resolve it.