Ring the bells that still can ring
Forget your perfect offering
There is a crack in everything
That’s how the light gets in
– Leonard Cohen
The past couple of years have brought energetic debate within the mediation profession, pushing mediators to confront questions about practice, professional identity, and the nature of mediation itself. One of the most controversial questions concerns the use of the caucus, the private meetings behind closed doors with each side to a dispute separately. Some consumers of mediation services, particularly attorneys, insist upon it, as I learned while attending one of the break-out sessions at the annual spring meeting of the ABA Section on Dispute Resolution. Some mediators rely on it heavily. Meanwhile, others, like Gary Friedman and Jack Himmelstein, authors of Challenging Conflict: Mediation Through Understanding, reject the use of the caucus entirely, arguing that the caucus distorts the flow of information between parties and negates the principles of dialogue and rapprochement that lie at the very heart of mediation practice.
Wading into the debate is experienced international commercial mediator Geoff Sharp with a working paper entitled, “In Praise of Joint Sessions” (PDF). Geoff pulls no punches in his criticism of devotees of the caucus, observing that “shuttle mediation has arisen, in part, out of a laziness by mediators.” On the basis of his substantial experience mediating difficult commercial disputes, Geoff explains why he believes the joint session is so essential to their resolution:
The heart stopping success or failure of a large commercial mediation often occurs in joint in those pivotal moments where the mediation sets its course, north or south. In my 10 years of mediation, I have never seen a party make the kind of movement, whether emotionally or financially, in private as they do in joint. Sure, movement may manifest itself away from the public glare but it is usually as a result of insight gained in the fire of a joint session.
Of great importance to Geoff as well is the capacity for mediation to bring transparency to people whose differences have largely kept them in the dark, as well as revelations that light their understanding. To bring his point home, he shares the quote from Leonard Cohen with which I began this post. The joint session illuminates the shadows and brings the sun to the dark places in the disputes that divide us. Go read this working paper – it truly shines.
Business Conflict Blog by Peter PhillipsTwo recently released survey reports measure the pervasive use of arbitration to resolve workplace disputes. Alexander J.S. Colvin of the Economic Policy Institute in Washington,...By F. Peter Phillips