By Martin Quinn
Mention holding a joint session and you are sure to provoke an argument between mediators and teachers of mediation on one side and lawyers who represent clients in mediations on the other. That dichotomy is not wholly accurate because many mediators have also abandoned the use of joint sessions. As a mediator of well over a thousand business-oriented lawsuits and disputes for 20 years and as a law school teacher of mediation practice for almost 10 years, I will offer a few thoughts and some experience on this divisive topic. I come with a bias: The disputes I mediate usually involve parties who have a business or relationship that is in tatters but just may be extended or rekindled. This is frequently true of employment, neighborhood or landlord-tenant cases; disputes among contracting parties or business competitors; partnership, stockholder and family quarrels; and healthcare business disputes. To a certain extent, despite the parties’ immediate differences, going forward they usually need each other or at least will benefit from a civil relationship. Therefore, this article is of less relevance for personal injury and other cases in which the parties have never met before and are unlikely ever to meet again.
As envisioned in the classic mediation training, the mediation commences with all participants—the mediator, lawyers and clients—together in a room. Such a meeting, it is thought, promotes many objectives. It allows the mediator to demonstrate their expertise with the process and their mastery of the relevant facts; to obtain consensus on an agenda for addressing the key issues; to explain confidentiality principles; to assess the competence, preparation and styles of the lawyers; to begin to understand each party’s mind-set and needs; and generally, to set the tone for a collaborative discussion. A joint session allows counsel to demonstrate confidence and readiness to try the case if it does not settle, to establish credibility with the mediator, to show off in front of their clients and critically, to speak directly to the opposing party. The parties, it is said, benefit from a chance to “tell their story” to a receptive listener, to demonstrate both their confidence in their case and their openness to a reasonable settlement and possibly to mention non-legal personal and emotional motivations that they will need to have addressed. Theoretically, the climate for negotiations will be improved by beginning the day with a conversation in which everyone is cautioned to speak respectfully and to listen attentively.