In Defense of Joint Sessions

Hon. Lynn Duryee (Ret.)

Hon. Lynn Duryee (Ret.)

By Hon. Lynn Duryee (Ret.)

Sophisticated ADR users increasingly instruct their neutral to skip the joint session and get down to business. They have grown weary of listening to tiresome opening statements and wary of encountering angry outbursts. Yet for some types of conflict – contentious trust litigation, high conflict divorce, clashing neighbors and emotional partnership disputes, to name but a few – the joint session can be the perfect tool to get the job done. It may seem counter-intuitive to place embattled participants in the same room and expect a peaceful outcome, but here is why it can work:

  • The parties have experience in settling problems between them. Take the example of warring adult siblings. These parties undoubtedly have decades of experience in solving family problems large and small. They have worked out ways to settle every prickly dispute from, “Who has to sit in the middle seat?” to “When should we put Dad in the home?” In a mediation setting, their experience in settling their own problems can be an invaluable asset in finding the best solution for them.
  • The parties (secretly) wish to resolve the emotional aspect of the conflict.  Whereas a personal injury plaintiff would likely not care whether his antagonist’s carrier overpays to settle a case, a divorcing spouse might well worry that the soon-to-be-ex won’t be able to squeak by on the proposed property division. It may be very important to participants that the settlement is viewed as fair to all sides. It is common in divorces for the parties to feel shame at their failed marriage. A joint session where parties are working on the problem together can address all of these concerns.
  • The parties will have an ongoing relationship. A lot of conflict involves parties who will never see and who never want to see each other again. But in cases where parties have an ongoing relationship, a civil and orderly joint session can set the framework for future interactions. Take the example of the heated neighbor dispute. A separate-caucus mediation might resolve where the fence is placed and what trees are planted, but what happens when the fence needs painting and the trees block the view? A well-run and respectful joint session might set the stage for future communications, enabling the parties to have a template for how they may solve the inevitable problems that arise in their future.

Admittedly, the joint session of an emotional case might feel nerve-wracking and uncomfortable at the outset, but the neutral will ensure that communications are respectful, outbursts are minimized and focus on the issue is maintained. In this way, estranged relatives may offer forgiveness, spouses may shed tears and business partners may shake hands.

In the right case, the joint session takes care of business – and then some.

JAMS Supports the ABA’s Planned Early Dispute Resolution Project

Planned Early Dispute Resolution (PEDR) User Guide

Planned Early Dispute Resolution (PEDR) User Guide

In the interest of saving time and money, the ABA Dispute Resolution has launched a user guide to help parties and lawyers develop a new process to resolve disputes.

Back in 2011, the ABA Dispute Resolution Section appointed the Planned Early Dispute Resolution Task Force to promote Planned Early Dispute Resolution (PEDR) by lawyers and clients and to take advantage of ADR services and neutrals at the earliest appropriate time. PEDR is a general approach that enables parties and their lawyers to resolve disputes as early as reasonably possible.

PEDR aims to satisfy parties’ interests, reduce litigation risks and save time and money. It’s a major change from traditional approaches to dispute resolution for many businesses and their law firms, not merely a shift of procedures. PEDR is a framework for using a variety of dispute resolution processes, including direct negotiation, standing neutrals, mediation, arbitration and hybrid processes tailored for particular disputes. Although some businesses and their lawyers use a comprehensive PEDR approach, most probably do not.

The Task Force recently developed a user guide to help parties and lawyers develop and use a PEDR process tailored to the needs of each party. The guide focuses particularly on the needs of businesses, though some of the material can be adapted for lawyers representing other types of clients. To review the user guide, please click here.

This guide provides a great framework to help resolve disputes as early as possible and JAMS was happy to be one of the sponsors.

A comprehensive PEDR system includes:

  • General plans for preventing and resolving disputes
  • Early warning systems for issues that may lead to disputes
  • Identification and monitoring of disputes
  • Early case assessments to determine the best way to manage each dispute
  • Efficient and effective procedures for handling and resolving disputes

The Task Force also developed PowerPoint presentations and a short podcast, which you can find here.

The Importance of Culture in Conflict Resolution

JAMS had the honor of supporting the 2013 ABA Mediation Week in October. The theme for the 2013 ABA Mediation Week was “Making a World of Difference.” JAMS partnered with local bar associations, community organizations and law schools throughout the week and held events in Atlanta, Los Angeles, London, Miami, New York, San Francisco and other locations.

NY Mediation Week 2013

JAMS Mediator Bob Davidson, Esq. served as the moderator for the NY Mediation Week event. The panelists included JAMS Mediator Margaret L. Shaw, Esq., Rutgers Anthropology professor Aldo Civico, Columbia University Academic Director Beth Fisher-Yoshida and NYPD Detective and Mediator Jeff Thompson.

At a Mediation Week panel discussion in New York, a panel of seasoned ADR professionals, including two JAMS mediators, a doctor of Anthropology, a New York Police detective and an organizational consultant, explored the role culture plays in conflict resolution.

The definition of culture cannot be limited to nationality, language or race. Culture must be thought of as how we define ourselves as human beings; how we create and give meaning to our experiences by constantly spinning a web of significance from our own environments. In the context of resolving a conflict, it is important to understand the environment in which and from which those involved are from. Why is this conflict important to them? Is it about money? Is it about the land? An apology, perhaps? One of the panelists shared an example of a high-stakes mediation where one of the parties simply needed an apology and nothing further. In this example, the culture that existed was so unexpected that unless the need for an apology was explicitly expressed, the mediation could have run the risk of intractability. Furthermore, it must be understood that culture is flexible, and continuously changing. We can think of our own country, for example, and just how different the culture is today than even a decade ago.

With this notion that culture is always present and changing, the discussion went on to point out the importance of “normalizing” the situation (or mediation). In the midst of a heated negotiation, it is the job of the mediator to harness the energy and guide the various styles of communication towards a more normalized playing field. Each party comes to the table with his or her own style of communication – or culture – and so ensues the mediator’s efforts to understand and raise awareness of that.

One of the key aspects of culture is non-verbal communication and the role it plays in conflict resolution. Another panelist emphasized the many non-verbal actions that can impact reactions during mediation. Crossing the arms, sitting back in a chair or a handshake are considered “micro-cues,” which has the ability to instill or diminish trust instantly, and not always intentionally.

As we think about culture on a small scale, we must also consider the larger and more international aspect of culture. When mediating internationally in places where the culture and style of communication varies from that of America’s, what should we be aware of? Some cultures speak slowly with frequent pauses, which can change the pace at which the mediation progresses. Then, there’s the significance of tea and coffee breaks; sometimes more than caffeine is gained when everyone stops and the environment shifts. Further still, there is importance of observation and active listening. It is often forgotten in American culture just how meaningful it is to stop and just listen.

Information Friday: Some News to End Your Week

Here’s a round-up of ADR news happening around the world. So, take a break, grab a cup of coffee and get informed!

Mediation Key to Other Disputes, Why not the Shutdown?

Mediation Urged in Maryland Black Colleges Lawsuit

SCOTUS Set To Hear At Least One Arbitration Case This Term