Factors that Determine the Beginnings of the Initial Mediation Session

For the past several years Roselle Wissler (Arizona State) and I have been working on several articles about the early stages of mediation based on data collected from more than 1,000 mediators from 8 states across the country.  Our latest article from this data set Joint Session or Caucus? Factors Related to How the Initial Mediation Session Begins came out recently in the Ohio State Journal of Dispute Resolution.  The surprising thing we found is that mediators tend not to tailor their opening sessions to case needs, but simply follow their routine opening practice.   In other words, they start things out the same way all of the time.  I always thought that being able to tailor an opening session to the parties’ needs was important – and I’ve been saying that for years.  That said, most civil mediations in Arizona begin in caucus because “that’s how we do it here,” so I should not have been surprised.

For more info check out the piece, and the abstract is below.

The use of traditional joint opening sessions to begin the first formal mediation session has declined in recent years, with a corresponding increase in separate initial caucuses. Mediators and lawyers have offered several possible explanations for this change and have suggested rationales for and circumstances under which either initial joint sessions or initial caucuses should be used. To date, however, empirical research exploring these issues has been quite limited. The present Article reports the findings of the first study to examine whether a wide range of factors, including dispute and mediator characteristics as well as pre-session communications and other aspects of the mediation, are related to the use of initial joint sessions versus initial separate caucuses. The study involved the survey responses of more than 1,000 mediators who conducted court-based and private mediations in general civil and family cases in eight states.

            The findings show that a majority of mediators in both civil and family cases said that they themselves have the most influence on how the mediation begins, and many mediators said that they often or always begin the first mediation session in the same way throughout their mediation practice. Moreover, the mediators’ customary approach to the initial mediation session is the factor most strongly related to whether the mediation in a particular case begins in joint session or in separate caucuses. Overall, the strong role played by factors that apply broadly across the mediators’ practice, especially the mediators’ usual approach to the opening session and the state where the mediation took place, might explain why case characteristics and other case-specific factors do not have stronger relationships with how the mediation begins. The findings suggest that recommendations that mediators determine the structure of the initial mediation session on a case-by-case basis often are disregarded.


Art Hinshaw

Art Hinshaw’s research and teaching interests lie in the field of alternative dispute resolution (ADR), primarily mediation and negotiation. His research bridges ADR theory and practice, and his teaching responsibilities include the Lodestar Mediation Clinic and Negotiation among other ADR courses. Professor Hinshaw is active in the ADR community having… MORE

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