Abolition of Mediation Joint Session

Can it Hurt the Expert?

Mediation is a dispute resolution process. So, what is a process? A process is a procedure, a course of action, or a methodology. Mediation has been around for several thousand years, and the joint session has always been a pivotal part of that process. Historically, the mediation process included beginning with a joint session. Mediation is after all a facilitated negotiation. When individuals negotiate, they interface with one another, exchange information, and attempt to work out a settlement. Now some are abandoning not only the initial joint session, but also all joint interaction between the mediation participants. What is the impact of this change on experts and the information they provide? In this article, Ms. Yeend discusses this trend and how it is impacting experts where this mediation approach is adopted.

[su_pullquote align=”right”]Resources:

Experts, Mediation, and Confidentiality: How to Avoid Mistakes

Collaborative Law—What is It, and Should I Consider Adding This to the Services I Offer?

Top Five Commercial Litigation Engagements You’re Missing Out On

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Mediation is a dispute resolution process.  So, what is a process?  A process is a procedure, a course of action, or a methodology.  Mediation has been around for several thousand years, and the joint session has always been a pivotal part of that process.  Historically, the mediation process included beginning with a joint session.  Mediation is after all a facilitated negotiation.  When individuals negotiate, they interface with one another, exchange information, and attempt to work out a settlement.  Now some are abandoning not only the initial joint session, but also all joint interaction between the mediation participants.  What is the impact of this change on experts and the information they provide?

Some mediators began dropping the joint session reasoning that the parties would be more candid speaking only to the mediator.  It is interesting to note that this change coincides with the increase of lawyers and retired judges entering the mediation field.  It appears that those with little or no mediation training, or those with extensive careers in the law, find it difficult to shed their well-honed litigation (directive) approaches for more collaborative ones.  Some now refer to this significant change in the mediation process as the “litigation of mediation”.

Benefits of the Joint Session

The initial joint session is the time to set the tone for the entire mediation experience.  It is a time for everyone to meet the key decision-making participants—to reaffirm that all necessary parties are present.  It is a time to ensure that everyone understands the process, its components, such as confidentiality, including its exceptions.  It is a time for the participants to hear directly from one another all the issues that are to be resolved.

There are times during a mediation that an attorney may want to speak privately with the client and or the expert.  These private meetings are called caucuses.  At other times, the mediator may have a need to speak separately with the participants.  These caucuses are often very helpful for getting additional information, considering the risks of continuing the conflict, or for generating options.

There is a huge benefit derived from bringing the parties back together in a joint session after caucusing.  The participants can hear directly from one another.  It provides an opportunity to get 100 percent of the message.  Attorneys and insurance representatives can hear and see for themselves how strong plaintiffs or defendants will be as witnesses at trial.  They can better assess the strengths and weaknesses of the expert’s testimony as well.

Potential Pitfalls

Potential pitfalls include attorneys fearing that their clients may say something to hurt their case.  Additionally, many present-day mediators and attorneys are uncomfortable in highly emotionally charged settings, let alone even skilled in managing participant emotions.  When everyone is skilled and prepared, the probability of settlement increases and the potential pitfalls do not materialize.

Eliminating the Joint Session

Some attorneys and mediators claim that they prefer no joint sessions, because it will shorten the process and save money.  Research has disproved these claims.  In fact, there are fewer settlements, when parties have been deprived of participating in joint sessions.  In addition, there is the very probability the parties will suffer from “buyer’s remorse”, because they did not feel that they were heard when kept separated.

There are other challenges with eliminating the joint session.  Mediators are not decision-makers.  Avoiding joint sessions, and solely relying on the management technique of caucus may be problematic.  For experts, this presents two problems: 1) less or ineffective communication, and 2) decision-making is taken away from the participants.

Since mediation is a facilitated negotiation, the ability to communicate, to exchange information, ideas, or potential options is critical.  If the mediation participants cannot effectively convey or receive information, then there is nothing to negotiate.

When mediation participants are kept separated, and the mediator becomes nothing more than a messenger, communication suffers.  All good negotiators understand that only seven percent of a communication is the actual words.  This means that 93 percent of the message is completely lost, or is left to be translated by the mediator when the participants are kept separated.  Good negotiators want to watch and listen to the complete message—furtive glance between attorney and client, a face flush, a nervous tick, a wince from the insurance representative, a knee shaking, eye movement, voice intonation—the list is lengthy.

Without observing as well as listening to the other side, it is not possible to accurately know the impact of the expert’s testimony or the documents he/she prepared for the case.  Relying on the mediator to be an accurate translator is as a reliable information source as the old childhood game of “telephone”.

When mediations are run exclusively as caucus, there is a very real concern about the mediator changing rolls from a neutral managing the process to a decision-maker, or even becoming an advocate for one side or the other.  If a mediator becomes the default decision-maker, then control over the outcome is removed from the parties.  This contravenes a fundamental principle of mediation: parties retain control over the outcome.  If the parties want a decision-maker or someone to “pound some sense into the other side”, then go to arbitration, or a settlement conference, or private judging.  If the parties have opted for mediation, then it behooves the mediator to retain the designated roll.

It is possible that the mediator does not see the relevance of the expert’s opinion, and may not even present the information to the other side.  It is more likely that the mediator will develop his/her own interpretation of the expert’s work, and may argue against it to the other side.  If a mediator uses the most powerful tool in the mediator’s proverbial “toolbox”, the caucus, then what is left?  For many, it means that the mediator becomes far more proactive directing the outcome, which may well work against the case presented by the expert.

Final Thoughts

Without joint sessions in mediation, there is a higher probability that participants will not be able to negotiate a settlement, and mediators may well modify their roles from a neutral facilitating negotiations, to telling or even coercing people to accept terms put forth by the mediator.  If the mediator becomes an advocate for one side, then the impartial function of a mediator is lost.  Mediation is premised on the concept that the dispute and the solutions belong to the parties.  Often, when everyone is separated, the focus by mediators is on quick solutions—and the real benefits of the expert’s evidence are missed.

Nancy Neal Yeend is a principal of Pacific Coast Strategies, a Portland, OR-based dispute resolution and mediation firm. Ms. Yeend is a seasoned and accomplished professional, as well as a prolific writer and thought leader, with a focus on dispute management strategy and mediation. Ms. Yeend provides expertise to business, governmental entities, and not-for-profit organizations. She is adept at developing programs for prevention and constructive management of work related conflict. In addition, she is a skilled trainer and experienced course designer, specializing in communication, problem solving, negotiation and dispute management that mediates business and contract related issues at all stages of litigation: pre-suit, trial and appellate.
Ms. Yeend can be contacted at (503) 803-6591 or by e-mail to Nancy@controllingworkplacecosts.com.