Mediation Reimagined: Harnessing Joint Mediation Sessions for Better Outcomes

When preparing for a mediation, counsel often pronounce that joint sessions are, at best, a waste of time. I disagree. My three-plus decades of experience in mediation of commercial and construction disputes have convinced me that a properly managed joint session is an important and valuable first step for an effective mediation. As an adjunct to caucuses, a joint session provides parties a forum to directly hear from the other side about what is most important. By exploring the process and benefits of this highly effective tool, including a joint pre-mediation call to shift mindsets, establish ground rules and address concerns, mediators can harness the power of collaborative resolution. This article explores the numerous benefits of a joint mediation session from the perspectives of a mediator, attorney, party and insurance professional.

The Mediator's Perspective: Facilitating Communication and Understanding

Conceptually, a joint mediation session is a tool that brings the parties to the dispute together with the mediator to discuss their respective positions. There are a number of critical components of a joint session, including both when the session will be held and the objective substance. However, the true power of a joint session is the ability to convey, harness and understand the emotional content of the dispute.

Pre-Session Call and Process Expectations

As a part of the pre-mediation call between the mediator and counsel, the mediator should share that the mediation may include the possibility of a joint session. From my practice, I refer to a joint mediation session as a meet-and-greet. I suggest that this is an opportunity to bring the parties together, sometimes for the first time since the dispute arose, to provide me (the mediator) with an overview of the dispute. While the attorney perspective and standard objections to a joint session will be discussed below, the opportunity to communicate directly with decision-makers in a central setting is an opportunity that most counsel/parties cannot pass up—especially where there is a belief that the party’s perspective has been filtered by counsel and the actual risk inherent in the dispute is being under- or overvalued.

The pre-session call should include a discussion of the ground rules for the joint session. This discussion could include how introductions will be conducted, who is going to participate, who is going to speak and when, the role of experts and any concerns counsel or the parties have regarding the process.

The Joint Session

Each step of the joint session is important. While each mediation has its own flow, the mediator will typically commence the joint session with an overview of the process. As part of this process, the mediator can also introduce an icebreaker exercise. For example, the mediator can share with the parties something personal that others would not otherwise know. As part of the process, each participant would also be asked to share something. In this way, subtle connections outside of the dispute can commence among the parties, thereby humanizing the participants.

Alternatively, after setting out the ground rules and expectations, the mediator can ask counsel, “from 20,000 feet,” why are we here? Framing the dispute on a more global perspective serves to identify joint goals, thereby shifting and reorienting each party’s perspective to a more global and collaborative mindset.

As the joint session progresses, the mediator is able to observe each party’s reactions and emotions in real time. This is a critical step in identifying and clarifying misunderstandings, interests and priorities. While the role of emotion in the joint session is often cited as a detriment and excuse to avoid a joint session, it is the identification and expression of the underlying emotions by the parties that can be the most important part of the process.

In particular, while the parties’ factual and legal recitation of their respective positions typically has a logical and reasoned basis, the underlying emotions, if left unexpressed or unidentified, can easily sidetrack a resolution. This is especially true where the parties have an ongoing relationship that needs to continue once the dispute has been resolved.

At the conclusion of the joint session, the mediator can provide a high-level summary of the positions asserted and guidance on the next step of the mediation process. The summary conveys to the parties that their positions have been heard, and they are provided an opportunity to correct any misunderstandings. Concluding the joint session with a discussion of the next steps in the process serves to ground the parties’ emotions and provide clarity on the mediator’s expectations.

The Attorney's Perspective: Perceived Pitfalls

For attorneys new to mediation, the reasons for having a joint mediation session are often misunderstood. General concerns about having a joint session include the following:

1) It will be a waste of time (i.e., the other side is entrenched in its position).

2) It will be used for free discovery (i.e., we know a lot more than they do, and we want to save our position for trial).

3) The other side is dishonest (i.e., we cannot trust anything they say).

Each of these concerns is based upon how counsel interprets and understands the conflict based on their own perspective. This often leads to biased views where each party involved in the dispute sees the situation differently due to their personal experiences, beliefs and emotions. A joint session, when handled appropriately, serves to provide a common framework for the parties to communicate. Emotions can be identified, acknowledged and included in a collaborative resolution discussion.

Most counsel are willing to admit that a significant concern regarding joint sessions is the perceived loss of control. In particular, counsel fear escalating emotions, unscripted outbursts and unforeseen consequences will abrogate their well-thought-out mediation strategy. However, it is the dynamic interaction of the parties in a joint session that presents creative options to resolution that would otherwise not exist.

As discussed above, one of the most powerful tools for counsel in a joint session is the ability to convey the client’s position directly to the other party’s decision-maker. This messaging can provide not only positioning, but also risk assessment and creative pathways for resolution, all without opposing counsel filtering the message. This is a golden opportunity that should not be turned down without serious consideration.

The Party's Perspective: Empowerment and Greater Satisfaction

For the parties directly involved in a dispute, a joint mediation session offers a sense of empowerment that comes from actively participating in the resolution process. The ability to communicate directly with the other side also provides a sense of ownership over the outcome and increases overall satisfaction once the matter is resolved.

Many disputes arise from misunderstandings and a lack of communication. By engaging in face-to-face dialogue, the parties can express their concerns and listen to the other party's point of view. It is important to note that each party typically has information that the other side needs in order to settle the matter. In the mediation context, a confidential environment provides an opportunity for open communication to help defuse tensions, foster empathy and brainstorming, and ultimately facilitate resolution.

The Insurance Professional's Perspective: Risk Mitigation and Efficient Settlement

Insurance professionals also stand to gain from a joint mediation session. By participating in one of these sessions, insurance professionals may gain a better understanding of not only the issues, but also the individuals making the decisions. Further, where the benefits of a contract of insurance are in dispute, the claims professional can convey the issues with coverage to the opposing side as a part of the resolution process. In many instances, the availability of insurance coverage, or lack thereof, can have a significant impact on the discussion process and eventual outcome of the dispute. All of these insights and opportunities can inform the parties’ decision-making, helping them to assess the merits of the case and the risks of failing to settle.

Where there is a bad faith claim or the risk of a bad faith claim, demonstrating a willingness to engage in the mediation process and actively working toward a resolution supports the perception that the insurance professional is acting in good faith. This proactive approach can help protect the company's reputation and minimize the likelihood of future litigation.

A joint mediation session offers numerous benefits for all parties involved. From the mediator’s role in facilitating effective communication and identifying issues to the attorney’s ability to advocate directly to the decision-makers to the party’s empowerment through direct involvement to the insurance professional’s goal of risk mitigation, mediation creates an environment that fosters collaboration and resolution. By embracing joint sessions, the parties to the dispute can address a multitude of issues (factual, legal and emotional) to achieve more satisfying outcomes. The many advantages of a joint session as a part of the mediation process make it a valuable tool for resolving disputes in a way that is beneficial to all stakeholders.

Stacy L. La Scala, Esq. is a highly regarded JAMS mediator who has resolved a wide array of disputes, including construction, insurance, business/commercial, and professional liability matters. Mr. La Scala's construction and insurance practice includes a wide variety of essentially every type of commercial, industrial, public works and residential matter.