Arbitration & Mediation

In Further Praise of the Joint Session.

By Christopher Annunziata

Last week, Geoff Sharp admitted to sitting on a draft post which modestly “lazy mediators don’t do joint sessions” or “lazy mediators only meet in private”. It appears that the gist of his post is that anyone can be an errand boy, but it takes a special kind of mediator to force the parties to sit across a table, look each other in the eye, and *gasp* communicate. He also commented upon an article (forwarded separately to us both by mutual friend/mediator/blogger Stephanie West Allen) entitled “Moving Mediation Back Toward its Historic Roots - Suggested Changes” by veteran mediator Joseph P. McMahon. Both Geoff and Mr. McMahon argue that the current state of mediation favors a “settlement conference” style of mediation that isolates the parties and minimizes real communication between the two.

Coincidentally, I have also been thinking a lot about the use of joint session since reading an article by New Hampshireite Scott Flegal entitled Advocating for Understanding. Mr. Flegal’s article discusses the “understanding based” model of mediation, which argues for the total elimination of caucus session. Flegal argues that the understanding based model promotes dialogue and joint decision making skills, while reducing distrust, both of the opposing party and the mediator - who is often viewed with distrust when he or she spends significant time with the other party, or is perceived as being unfair when playing devil’s advocate (reality testing).

Like Geoff, I think articles like these, which have appeared in Bar Journals, should spur interesting dialogue. Mediators should spend more time considering the dynamics of the conflict in front of them and decide whether to encourage the parties to hash it out in a joint session. Caucus is a useful tool, but only one of many at our disposal. [As an aside, I really dislike the "toolbox" metaphor almost as much as I dislike Biz school lingo like "incentivize" Why must we be made to appear to be plumbers or carpenters? It sounds as if we can reach into our "bag of tricks" and when the Phillips head screw driver doesn't work, we can use the needle nose pliers.]

I had a case this past Monday that likely would not have settled had I not brought the parties back together for one last joint session. The plaintiff had expressed frustration with the brief caucus sessions and had asked me to ask the defendant numerous questions. Even though the initial joint session was somewhat charged, I thought it best to get them back at one table. That’s when the real movement occurred.

I think too many mediators fear bringing the parties back to the same table unless there is some common ground already established through caucus and so-called “shuttle diplomacy.”

Full post as published by CKA Mediation and Arbitration Services Blog on June 25, 2008 (boomark / email).