Ponte Vecchio Bridge, Florence, Italy, 670x270

Joint Session Approach in Mediation.

Posted on 21/02/2016 · Posted in Mediation

One of the first decisions that must be made before mediation can begin is whether the mediation is going to be a joint session (in which disputing parties gather round a table to discuss and hopefully resolve their differences), or whether it will be conducted in the format of separate caucuses. Both approaches have their pros and cons and are not mutually exclusive, so the mediator might begin the mediation process by caucusing separately and then bring the parties together further down the line to discuss and work through options collaboratively.

Where there is unity there is always victory”
Publilius Syrus

Why choose a joint session?

The joint session approach is at the heart of what mediation is all about and distinguishes it from other types of dispute resolution, giving disputing parties the opportunity to lay out their perspectives and address and listen to the other party directly. The approach has many benefits as it is the most collaborative way for two disputing parties to navigate the mediation process. At the heart of any successful resolution of a dispute, and in particular where the parties need to continue to work together, a joint session approach demands that the parties communicate with each other in order to better understand the other side’s position. Nothing succeeds in achieving this better than a joint session.

What are the benefits of separate caucuses?

There are also good reasons for periods of time isolated from one another in which the focus of the mediator’s attention is on the individual party’s needs. Separate caucuses allow both parties to consider their position out loud and test their arguments. In particular they can imagine themselves in the position of the opposite side and see how they would react to the suggestions for resolution that they are proposing. In addition to this separate caucuses means that the parties’ are not “on parade” which is often how they will feel in a joint session. Finally after a particularly stressful negotiation, or a joint meeting that ends up in an argument, the mediator may consider it wise to allow the parties a bit of time on their own so that both do not feel too pressurised and so to increase the chance for a successful outcome. If a mediator can discern outright that there has been a communication breakdown between the two parties it may be advisable to opt for a joint session approach over caucuses, as not to allow paranoia to develop between the two when separated.

Where possible an alternative dispute resolution practitioner will always try and encourage a joint session over separate caucuses due to its many benefits, such as:

  • A joint session allows the mediator insight into both parties and how they interact with one another, which may lead to a more efficient process and ultimately, settlement.
  • It allows the mediator to set the tone of the mediation with all parties present, helping to ensure all participants are on the same page and understand each other’s expectations and standpoints.
  • A mediator may cleverly utilise this time to engage both parties in small talk, this may help to encourage both sides to humanise the other and see them as individuals outside of the working world. This can create greater empathy and understanding, both of which aid conflict resolution.
  • Where money is involved it can help for parties to meet face to face, and emotionally connect with one another, as often experiences of traffic accidents say (which are often mediated), parties may realise that they have more shared experiences than they realised and re-evaluate their demands as such.
  • The joint session is unique in that it allows each party to speak directly to the other party about the case and to lay out their perspective in a respectful, confidential and structured environment.
  • At the same time it also allows the other party to listen which may lead to a better understanding of each party’s perspective and therefore a more collaborative discussion.

Whether disputing parties opt for a joint session or caucus approach mediation has multiple benefits over traditional litigation routes, not only leading to significant time and cost efficiencies, but also putting the parties in control of the process and result. The key is that experienced, well-trained mediators understand the expectations and requirements of the disputing parties and lead the approach that will result in the quickest and best consensus.

Different countries favour different approaches that suit the cultures within them. There has been some evidence to suggest that in Southern California mediators have moved towards caucuses whereas in Germany, a judge must request permission from both parties in order to conduct private sessions. This is reflective of a move in Germany to regulate mediation as a process and provide quality assurance, which may be a welcome development on the consumer side. However, it is important that mediation always retains its flexibility and that the consumer has a degree of control over how the resolution is conducted compared to litigation, as such mediators will always allow clients to tailor the process to their needs.

Expert Evidence Limited is a professional firm concentrating on the four main areas of dispute resolution; acting as expert witnesses in financial litigation, mediation, arbitration and adjudication. The firm has a civil, criminal and international practice and has advised in many recent cases. Areas of specialisation include banking, lending, regulation, investment, and tax.

Ask a question about mediation services. We are here to help!

Contact Us Now

Disclaimer – Please confirm any of the above views with your solicitor. Expert Evidence takes no responsibility or provides any guarantee that the views above are correct for your particular case or jurisdiction.