Whither the Joint Session

Recently I represented a client in a mediation at which the mediator – from New York – told me that he would not hold a “joint session” (i.e., a discussion in which all the parties or their representatives, personally, and all counsel, are present, and at least “opening statements” are given) unless the parties required one.  The reason he gave was to avoid putting my client, a 72-year-old widow, in a stressful situation. I was skeptical, but agreed.  (The case did not settle, though I cannot necessarily blame that on the lack of a joint session.) 

Since then I have researched the mediation literature, and found that in many areas of the U.S. mediators are recommending to the parties that the joint session be dispensed with and that the mediation consist only of separate caucuses.  The reason typically given is, as above, the potential volatility of the parties or their reluctance to be in the same room with their opponent.

After that research, and discussion with numerous other mediators, I believe that a joint session, properly structured and moderated, generally increases the likelihood of a settlement, and a fair one.

Negatives of the Joint Session

A number of reasons are given for dispensing with the joint session:

1. The joint session takes additional time;
2. It puts a timid party in a stressful situation;
3. Some counsel or parties will use it to intimidate the other side;
4. The joint session is not appropriate

(a)  when criminal behavior or physical abuse is a factor, and
(b)  when the parties know and literally hate each other too much.

Positives of the Joint Session

In favor of holding joint sessions, however, are factors too numerous to list but which include:

1. The discomfort caused the parties, even parties unfamiliar with litigation, is perhaps positive, in that it familiarizes those parties, to a small extent, with the discomfort they will face in trial;
2. It gives the parties a “day in court;”
3. It provides an opportunity for the parties to see each other as human beings, at least during the course of small talk unrelated to the dispute, which is generally included in joint sessions;
4. It informs each party, and counsel, of how the other party will look and sound at trial should the case not be settled.
5. It saves time in covering issues jointly rather than separately.

Be Creative

And even in situations in which it is anticipated that the parties will not get along, or in which events or certain persons in the joint session may obstruct the effectiveness of the joint session, a limited joint session may still be advantageous, and a creative mediator will consider changes to the classic joint session model in order to avoid losing all the benefits of the joint session.  These include:

1. Professionals only, in which opening statements, and possibly further discussion, are made with only the attorneys present (requiring agreement of all parties before such session is begun);
2. Partial client attendance, excusing one or more parties from portions of the joint session, such as allowing a party to listen to presentation of his own case, but excusing him from presentation of the other side if he would not receive it constructively;
3. Limited issues, in which certain particularly incendiary issues are precluded from the joint session and the parties and counsel focus on only those issues which might lead to settlement.

Obviously, planning ahead for such modified joint sessions is best brought about by discussions between the mediator and counsel for the parties well in advance of the mediation itself.  During those conferences, the mediator should ask counsel about the possible reaction of his or her clients to persons who might be present, to the issues which might be brought up, etc., and determine what counsel intend themselves to do at the joint session.

After such pre-mediation discussions with counsel, the mediator should encourage counsel to agree to as much of a joint session as possible, but should also respect counsels’ desire to limit or eliminate the joint session.

Posted by Attorney Joseph R. Soraghan. Soraghan practices in legal matters pertaining to business operations and growth. He guides businesses in financing, contracts, acquisitions, mergers, and sales. Soraghan frequently resolves commercial disputes as an arbitrator or mediator, or through litigation.