The Value of Joint Sessions in Mediation

During a continuing legal education course on advocacy in mediation I recently attended, a panelist reported that attorneys now almost universally express a strong preference for “shuttle diplomacy,” in which the parties remain apart from each other and the mediator acts as a go-between.  The panelist attributed this development to a belief that joint mediation sessions, in which the parties, their counsel and the mediator all participate, undermine the prospects of settlement because they frequently instigate emotional exchanges that cause the parties to become entrenched in their positions.

Joint sessions in mediation undoubtedly often involve emotional exchanges between the parties.  It, however, is far from guaranteed that these exchanges will have a deleterious impact.   They may well help the parties come to grips with the full implications of their dispute.  Moreover, in some cases, the parties may need an emotional bloodletting, so to speak, as a predicate to moving ahead.

A mediator should assess whether emotions expressed during a joint session will help or hinder the mediation process in a given case based upon his or her training, experience and intuition.  In the event of a joint session, he or she should be attentive to the words, tone, facial expressions and body language of the parties, all of which serve as barometers of the current emotional climate.  The mediator also should be prepared to diffuse escalating emotions.  Actions to take in this regard include rephrasing charged comments in more neutral terms, and calling for periodic breaks.  Using these and other calming measures should not only allow emotional exchanges to leaven the mediation process, but also educate the parties on how to manage emotions on their own.

Contributor: Ben Jacewicz, NVMS Mentor Mediator