Opening session is valuable and should be the default– except in family law matters. In determining whether to place the parties into the same room at the beginning of a mediation, there are several approaches: an opening joint session; a meet and greet between the parties and their counsel, then divide them into separated caucus rooms; and begin with separation and not place the clients into the same room with each other.
Across the country, there is a trend tending toward not holding joint session in mediation. Divorce or modification make up a large percentage of court dockets and small and solo practices, and many of these individual attorneys do not see or handle disputes outside the family law realm. While disputes are ultimately between disagreeing parties, unique to family law is often the utter disdain between the parties over deeply personal conflict, fragile emotions, feelings of abandonment, violations of trust, jealousy, and other deep-set human emotion. By and large opening session in family law matters is frowned upon by family lawyers and, in practice, there is high risk of incendiary results placing the soon-to-be former spouses in the same room.
This writer believes that the driving force behind this trend against opening session is the rise and prevalence of mediations in family law disputes.
The quantity of family law matters on court dockets has consistently been on the rise for several decades– the same several decades that mediation (and alternative dispute resolution) has been are on the rise as well. Mandatory mediations have become the norm in many jurisdictions, especially for family law matters, which have a particularly high rate of resolution at mediation. This means attorneys have a growing number of exposures to successful mediations that do not have an opening joint session.
Often family lawyers will refer to mediations in the general sense when expressing to attorneys (whether family lawyers or not) that opening session is counter-productive. This rise in family law matters gives rise to more who discuss mediations in the context of family law dispute resolution; however, the information gleaned from family law experience is sometimes generalized to non-family law matters— even when the family lawyer lacks experience in the non-family law mediation realm. All too often, family lawyers converse or communicate with non-family lawyers, and the two may not quite recognize the contexts in different practice fields for opening session may differ. Accordingly, to prevent misunderstandings about discrete field of practice mediation experience, mediators should differentiate between family law and non-family law contexts when opining on opening session and this discussion favoring opening session is presented in non-family law dispute resolution contexts.
In general, (in non-family law matters), opening session is advisable and should be the default. The experience of this writer-attorney-mediator (and in the experience of copious colleagues) is that opening sessions enables the mediation to have a greater chance of success. These reasons favoring joint session (in non-family law contexts) will be explored in a separate blog.
About the author: Andrew Tolchin is an attorney and mediator in the greater Houston area, and founder of 713 Mediator, LLC and Tolchin Law Firm, PLLC.