Tuesday, February 16, 2010

Fear of Joint Session

The practice of quickly moving to caucus sessions has become so widespread that many parties attending mediation seem to expect to caucus almost immediately.  Parties seem to want to cut to the chase of settlement negotiations quickly, and are concerned about the possible volatility of a joint session.  I had a couple of experiences recently where counsel expressly asked me before the mediation even began to please not even allow the parties into the same room at all, because they viewed it as a waste of time, or worse, to face the other side.  My response was to suggest that we at least stay together for introductions and some initial housekeeping matters, and then continue in joint session only for so long as the joint session continued to be productive. 

In both cases where counsel had asked me to keep the parties apart, it turned out that they had little difficulty in talking to each other.  Interestingly, I'm not sure we would have reached a settlement in either case if the parties had not remained in the same room for an extended period.  In one case, a landlord-tenant dispute, the joint session gave the parties a chance to see each others' human sides.  The parties also needed to make that kind of connection so that they could avoid similar disputes in the future.  In the other case, a dispute between two contractors, the parties needed to exchange a lot of technical information, which they were able to do directly, and which would have taken more than twice as long, and probably would have been less effective, had they been required to filter their views through the mediator.

The lesson for me was that parties sometimes need to be nudged away from their initial reluctance to remain in joint session.  Joint sessions present the fastest and most direct means of exchanging information.  They also allow the parties a terrific opportunity to observe how the other side presents their case, and reacts to their side's claims.  And they present a real opportunity for potential reconciliation in some cases.  Parties should enter into mediation with the expectation that they are going to be sitting in the same room with their adversaries, the same as if they were attending a deposition or a trial.  They should expect to break into caucus only when there is a real need to protect the confidentiality of information they may not care to share with the other side, or to conduct a strategy session outside the hearing of the other side.  The fear that a mediation will devolve into an unproductive shouting match is overblown, in my opinion, but of course precautions should be taken to protect against negatively-charged joint sessions.

(The photo, which I found on a soccer blog called True Fan, illustrates what sometimes happens in mediation.  Both the disputing players are pointing fingers at each other.  One of the disputants is trying to confront the other one, but that one is directing all his comments at the referee.  And the ref seems to be looking elsewhere for guidance.)

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