I’m tempted to just import Geoff Sharp’s entire post on joint session vs. separate caucus mediation or, as Joe McMahon positions the split in current mediation practice in Moving Mediation Back to Its Historic Roots, “dialogue-based” v. “separation-based” practice.
That seems silly when I can simply link you to Geoff’s post The Legal Community Has Learned to Accept Low Functioning Mediation.
I will give you a few excerpts, though, both Geoff’s own thoughts and those of McMahon quoted by him (thanks to our mutual friend Stephanie West Allen at Idealawg).
If denial and avoidance are thought to be the most universal responses to conflict, it is important to consider whether separation-based mediation merely plays into and enables such a response to conflict. If so, it is time to evaluate whether mediation and facilitation were really intended to provide support for such denial…
Support for the market model of mediation (“the market knows what it needs and what it needs is the settlement conference”) is claimed in the high settlement rates in commercial settlement conferences. However, a high percentage of civil cases always have settled, even long before mediation was in vogue…
McMahon asks of mediators; ‘are you fully satisfied with the quality of dialogue among conflicting parties in the mediations in which you participate?’
What a wonderful question! In my case however, only occasionally.
As McMahon says, ‘By broadly considering conflict and mediation, it may be possible… to move these processes back toward their historic roots—that being processes based on parties telling their stories in face-to-face dialogue aided by a mediator who can guide them to more effective communications.’
And though it is, as Geoff says, about the “timbre and tone of resolution,” it is also about obtaining more satisfactory resolutions — resolutions that not only satisfy more party needs, interests and desires but which invariably leave less value lying unused on the table when all parties leave the room.
I’ll grill Geoff about this over dinner tomorrow night and get back to you on all of this.
My own previous posts on joint sessions below:
Small Talk and Separate Caucuses. Excerpt:
Here, then, is the weakness of shuttle negotiation. The parties’ attention is fixated on money. A fixation that neuroscientists tell us makes us ungenerous and anti-social — the worst possible context for a successful settlement.
The next time you’re facing a difficult negotiation or mediation, remember the salutary effect of small talk in helping yourself and your opponent focus on the commercial and human situation that has brought you to the table so that you can more easily resolve the business and the people problem at the heart of the litigation.
Whether justice and fairness are, at some level, hard-wired into us (see Brain reacts to fairness as it does to money and chocolate) or culturally controlled, it seems that Rawls’ conception of “justice and fairness” based upon reasonableness and enlightened self-interest might flow more or less naturally from a mediated dispute resolution forum where the parties, rather than the mediator, are in control.
Emotions in litigation — and at the negotiation table — often run extremely high. It is for this reason that so many lawyers want to avoid joint sessions altogether and conduct their entire bargaining session in separate caucus with a “shuttle” mediator.
What I can tell you from three years of full-time mediation practice, however, is this — when business people — properly coached — are finally willing to sit down and speak to one another, to explain their circumstances rather than their legal and factual position — cases get settled rather quickly. (See Geoff Sharp’s In Praise of Joint Sessions here)
Because they have more in common with one another — including most particularly the dispute — than with anyone else.
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