Fundamentals of the Constructive Mediation Joint Session
Joint session is an opportunity for the mediator to introduce the parties and counsel to the mediation process all in the same room. There, together, the mediator can then call upon the parties to, in an orderly way determined by the mediator, communicate with one another about areas of agreement, facts, emotions, concerns, and even matters that have nothing to do with the case. The joint session is a chance to break ice and get folks talking and listening.
A prior blog addressed the rising prevalence of family law matters and the high volume of family law mediations, and why family law matters typically do not begin with a joint opening statements session. The underlying influence and affect of this family law matter rise has been a cause of a perception of mediation opening sessions that has, in turn, contributed to the decline in the use of the joint opening session in non-family law matters. This discussion below is of the use of joint session in non family law matters.
Here are some fundamental reasons why opening joint session with statements and communication between opposing sides should be the default:
1) Mediation enables a human cognitive developmental process to take place as parties and counsel share and listen to each other. While the mediator can keep parties in separate rooms, this separation prevents communication necessary to bring the parties to reach the conclusion that a change in position is acceptable.
2) Reality check. Often folks won’t see their weaknesses and only see their strengths through their own lens. Lawyers and clients need to be exposed to opposing viewpoints about the matter (that they inevitably would be exposed to in court). This can give them a flavor for what the impartial judge and jury may hear that may bring about the rationale to compromise. Parties are the decision makers and hearing from opposing counsel can expose them to an approach they either have not been told by their attorney or that they have not until then been willing to hear. There is no guarantee the party listens, but the context makes hearing much more likely.
3) Folks need to be heard and feel heard. The parties (and sometimes even the lawyers) have emotions and interests that are affected by the actions of the other party. By telling their story, the parties can then begin to adjust to placing the issues in the past and move toward closure. Adjusters, decision makers, and even corporate representatives need to hear and see the plaintiff (or defendant) and counsel for themselves; the personal injury plaintiff can more likely feel heard seeing the adjuster is listening. Each side needs to see the human face of the opposing side.
4) Opening session is the opportunity for the mediator to establish rapport, tone, ground rules, and order. It is essential that the parties and their attorneys observe the mediator in control of the opposing side so there is a feeling of parity and an understanding of impartiality, confidence, and the mediator’s competence.
5) Opening statements are a chance to narrow issues and note areas of agreement. The division can be narrowed., and issues honed. Misunderstandings can be worked through. In matters that are less procedurally advanced, areas can also be narrowed where further discovery can take place prior to a subsequent mediation.
On a whole, opening session enables the parties and the mediator access to many tools and processes through which conflict resolution success may be achieved.
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.