As an attorney mediator, I’ve witnessed firsthand the evolution of mediation practices, particularly the role of the joint session. In this article, I’ll explore the importance of the joint session in mediation, its evolution through the pandemic, and thoughts on why the legal profession should re-think abandoning the joint session.
What is a Joint Session?
A joint session in mediation is a meeting where all parties involved in the dispute, along with their attorneys, come together in the same room with the mediator. This session typically occurs at the beginning of the mediation session and sets the tone for the negotiations that follow.
The Benefits of Starting with a Joint Session
Beginning a mediation with a joint session offers several advantages:
- Humanization: It allows participants to see each other as real people, not just adversaries.
- Accountability: There’s less room for parties to attend late or be disengaged when everyone starts together.
- Setting the tone: It creates an opportunity for small talk and establishes a more collaborative atmosphere.
- Catharsis: Plaintiffs often find speaking in this setting to be a cathartic experience.
- Different perspective: It offers a view of the parties that’s distinct from what’s seen in depositions.
The Traditional Joint Session: Pre-Pandemic Norm
Before the COVID-19 pandemic, when mediations were almost exclusively in person, the joint session was a standard feature of most mediations. The setup was straightforward: the mediator would sit at the head of the table, with the parties and their lawyers on either side. This format allowed for a more human connection between the parties. Rather than seeing the “other” lawyers and parties as “opponents” or even as “bad” or “crazy” the simple pleasantry of a “good morning” or small talk—even if it was awkward— allowed everyone to view each participant as human.
One of the most significant aspects of the traditional joint session was the opportunity for the plaintiff to speak directly to the other party. This was not a rehashing of the deposition, but rather a chance for the plaintiff to share their personal experience and claims in the lawsuit, in a less formal setting. In some cases, depending on the nature of the dispute, the defendant might also speak.
After the initial joint session, parties would typically move into separate caucus sessions, or private meetings, for more detailed discussions, occasionally reconvening in joint session as needed, but mostly remaining in caucus, until a settlement was reached.
Other Pre-Pandemic Organic Interactions
Pre-pandemic, even when parties retreated to caucus, the physical proximity in separate conference rooms within the same office led to informal interactions. Trips to the restroom, coffee breaks, or lunch often resulted in impromptu conversations. These “water cooler” moments, while seemingly insignificant, played a crucial role in humanizing the process.
These organic interactions, coupled with the formal joint session, served a vital purpose: they allowed people to interact as human beings rather than pure adversaries. It also created an environment where opposing counsel, by virtue of these same interactions, might take a more collaborative approach. This shift in perspective often paved the way for productive negotiations.
The Pandemic Shift: The Disappearance of the Joint Session.
When COVID-19 hit, mediation on Zoom and other online dispute resolution (ODR) platforms quickly became the new norm, without the time to develop best practices. While these platforms offered a main meeting room that could function as a virtual joint session, many participants gravitated towards the perceived safety of starting and remaining in private breakout rooms, or caucuses, for the entire mediation.
As a result, mediations began to occur almost exclusively in caucus. Parties and attorneys, often joining from their homes, formed protective bubbles around themselves. The human interaction between the parties and opposing counsel evaporated. Over time, this practice became entrenched, and the joint session slowly faded from most mediations.
The Rationale Behind Bypassing Joint Sessions
As a mediator, I provide a process for parties to resolve a case. While I am an advocate of a joint session, I never want parties or lawyers to sign on to an online mediation and find themselves in a joint session they were not expecting, so for me, it’s important to ask permission. When I do, most lawyers decline, while some say they will speak to their client about it, and then, usually decline later. The most common reason for declining is that depositions have already been taken, so both sides have already heard from each other.
However, a party being questioned is different than a party speaking in narrative form. A party speaking in a joint session, often with a spouse or support person nearby, offers a different perspective than what’s captured in a deposition and may ultimately be the jury’s first impression of this person. This narrative can be instrumental in resolving the case with the defense able to hear from the plaintiff unfiltered. On the flip side, a plaintiff will be less likely to embellish when speaking to a room of people than from a private room where the mediator is shuttling the claims into another room.
The Impact on Negotiations
I’ll start by stating that online mediation has been very effective. While there are not a lot of formal studies on online mediation verses in-person mediation, the general post-pandemic consensus is that equal to slightly more numbers of cases settle during on-line sessions than in-person. Not to mention, the benefits of on-line sessions topple the scales in favor of on-line mediation. (These include the usual contenders from avoiding LA traffic to the comforts of working from a home office.) In fact, about a year ago, I had a case that I thought might benefit from an in-person session. I sent an e-mail to the lawyers on the case, suggesting the same. Within five minutes, I had heard back from both. They both preferred an on-line session. I laughed, reflecting on how I never hear back from lawyers so quickly. Lawyers have a definite preference—another point for online mediation.
Still as the mediator, in online sessions, which occur exclusively in caucus sessions, I observe this tendency of parties and their lawyers to conjure their opponent as the “unreal other” hidden somewhere on zoom. Unreal othering is a concept advanced by Tara Brach, psychologist, author, and meditation teacher. Unreal othering is the tendency to label another person, as bad or to label their position as completely incorrect, without the understanding that they are a real person. The unreal othering results in a separation, which prevents connection. The best analogy might be a dreaded dinner with a family member, in which you envision negative scenarios and arguments that never end up taking place. In fact, you’re likely to say afterwards “it wasn’t that bad” Bad othering can be interrupted through interpersonal connection. The joint session can interrupt bad othering.
With parties resisting online joint sessions, the questions arises whether this new normal is wise. While no hard data exists on this, research on why email arguments are counterproductive lends support to the value of beginning an online mediation with a joint session.
Scientists from The University of Chicago and UC Berkeley conducted a study where participants reviewed other people’s thoughts on controversial topics, such as abortion and politics. The other’s opinions were presented in three formats: writing, video, and recording. The participants had more respect for those they disagreed with when they heard their voices. The video was of little influence with the recording and video eliciting the same response, leading to the conclusion that hearing a person talk humanizes them. Thus, the study drew the conclusion that e-mail where two people were disagreeing without hearing the other person led to lower resolution. (Read about the study here: https://www.inc.com/jessica-stillman/science-you-cant-win-an-argument-over-email.html) In a solely caucus based mediation, parties are utilizing the mediator to “e-mail” their positions to the other side. Rarely do parties see or hear the other side in an on-line mediation.
In align with the study, not hearing the other party/counsel at mediation impacts the interactions between the parties. Even if the pandemic caused attorneys and their parties to blindly wander into a new form of mediation, which had a host of unrealized benefits, parties may have just as blindly abandoned an important component of mediation.
Conclusion: Embracing the Joint Session in Modern Mediation
While online dispute resolution has its place and offers numerous advantages, as we move forward in this new world, there’s value to be gained from holding onto some of the effective components of traditional in-person mediation practices. The joint session, with its power to humanize the process and foster connection, is one such component.
Most of the cases where the mediation does not result in settlement, occur entirely with each side hidden away in a private break-out room. The parties tend to be hostile toward one another convinced the other side is out of their mind. The virtual joint session is a tool that sets the stage for more productive negotiations by reminding all parties that behind every case are real people seeking resolution.
I encourage parties and their attorneys to consider beginning online mediations with a joint session. When the efficiency and benefits of modern technology are harnessed, while retaining the human touch, perhaps, we will see the percentages of cases settled online zip on by in-person sessions.
