As mediation has proliferated and become part of our legal culture, how mediations are conducted has diversified. Although we are aware that there is no “standard” process of mediation, there is little empirical evidence to inform us of what is really happening behind closed mediation doors. We tend to think that how we conduct mediation is the norm, particularly if it is how we were trained. We are not immune to selective perceptions that reinforce our way of how we practice. I am surprised to hear experienced mediators in roundtable discussions and at conferences describe what they do as the norm, when what they describe is different. This is particularly true in the use of joint sessions.
One of the earliest books on mediation was premised on the assumption that the entire process would be conducted in joint session: separate meetings with the parties would be an exception when animosity was too high for the parties to be in the same room together or secret information could not otherwise be revealed (see Folberg and Taylor, 1984). It was standard mediation training to begin with a joint session that would continue until no longer productive. As a co-author of that early book and a frequent mediation trainer, I believed that joint sessions were essential. Times have changed.
In preparation for a presentation on joint sessions, I thought it would be informative to survey experienced mediators to ask if, when and why they use joint sessions. I was interested in individual practice differences, as well as whether there were regional variations. I also wanted to learn about how use of joint sessions may have changed over time, the purposes for which they are used, and what the mediators thought about the use of joint sessions.
JAMS is a private ADR provider with over 300 exclusive panelists in 24 resolution centers in the US and Canada. Although JAMS panelists mediate all types of disputes, the largest category of cases are business and commercial matters in litigation where all parties are actively represented by attorneys. JAMS provides mediation workshops and continuing education programs for its panelists, however, they are independent contractors who determine their own mediation style and practices.
We asked all JAMS panelists to anonymously respond to an electronic survey about their use of joint sessions in mediation. 205 completed the survey, which is 76% of JAMS mediators, excluding the approximately 10% of JAMS panelists who only arbitrate. We analyzed the responses to determine the frequency of conducting an initial joint session, the purposes for which they are used, changes in frequency and purposes over time, resistance to joint sessions and whether the mediators thought a diminishing use of initial joint sessions to be positive or negative. We also were able to determine variations among JAMS three administrative regions: Northwest, Southwest and East/Central.
1) How long have you been a full-time ADR Neutral?
– 63% had been full-time for more than five years and about 40% more than 10 years.
2) Immediately prior to becoming a full time ADR Neutral were you a …?
– 63% had been judges and 24% litigators.
3) In which subject area do you most frequently mediate (choose one)?
– The most frequent subject area of mediations was business/commercial, with very little family cases.
4) Which is your primary JAMS region?
– JAMS regions are administratively divided into three sections of the United States. The largest region geographically and by number of mediators is the East/Central. The survey response rate was about the same between Southwest, Northwest and East/Central.
5) When you started mediating did you regularly begin with a joint session?
– When respondents first started mediating slightly more than 80% regularly began with a joint session. [East/Central mediators began with a joint session 95%, as compared with 72% in Northwest and 63% Southwest.]
6) If you did begin with a joint session, was this for the purpose of (choose multiple):
– The principal purposes for conducting a joint session when they first started mediating were introductions and discussing the process, discussing confidentiality, allowing parties to be heard by the other side, and providing an opportunity to assess parties and attorneys.
[No neutrals from the Northwest selected “beginning negotiations” as a purpose for joint sessions. In the Southwest 12.8% selected this purpose as compared to 4.8% in East/Central. “Exploring parties needs/interests” was selected by 23% in Southwest, 16.9% East/Central, and 2.9% in the Northwest region.]
7) Do you now use an initial joint session?
– In contrast to when the mediators first started practicing, now only 45% regularly use an initial joint session. (Compared to 80% when they began practicing).
[68.5% of East/Central respondents now use an initial joint sessions regularly, compared to 34% Northwest and 23.6% Southwest.]
8) When you use an initial joint session now is it usually for the purpose of (multiple):
– When an initial joint session is now held it is for similar purposes as earlier, but with less emphasis on what might be termed the more “substantive” purposes: clarifying procedural status of the litigation, allowing parties to be heard by other side, discussing facts, legal theories, and beginning negotiations.
[The East/Central region now uses joint sessions more for “substantive” purposes then either the Northwest or Southwest regions.]
9) If you do not use an initial joint session, do use a joint session later in the process?
– Although it is not uncommon after skipping an initial joint session to bring everyone together later for a joint session, most often that is not done.
10) What is your primary consideration in determining whether or not to use a joint session?
– The primary consideration in deciding whether or not to have a joint session was most often the combined preference of the attorneys and the parties, followed closely by the mediator’s general policy or/and the nature of the case.
11) Would you consider the impact of a diminishing use of initial joint sessions to be positive, negative or neither?
– More mediators considered a diminishing use of initial joint sessions negative rather than positive, but even more regard this trend as neither positive nor negative.
12) Have you experienced increased resistance to the use of initial joint sessions by attorneys or parties?
– A majority of JAMS mediators have experienced increased resistance to the use of initial joint sessions (58.4% who have to 41.6% who have not).
[The East/Central region experienced much less resistance to the use of initial joint sessions (40.4%), than did the Northwest (80.8%) or the Southwest (66.7%).]
The final item asked of survey respondents was: Please state any other comments you wish to share on the topic of joint sessions in mediation. (103 comments were received. Selected comments are indicated below.)
The comments regarding joint sessions were mixed. Some commentators expressed their preference for joint sessions and stated the classic reasons for starting with a joint session:
Others commented negatively about joint sessions based on bad experience with them:
Many comments addressed adaptations to a changing mediation market, timing of the sessions, case specific use of joint sessions, and alternatives to joint sessions:
Finally, some mediators have relabeled or reinvented joint sessions:
The survey responses indicate that the use of initial joint sessions is diminishing, but has not vanished. Eighty percent of JAMS mediators regularly used initial joint sessions when they began mediating, as compared to 45 percent now. However, the use of joint sessions varies by region, 68.5 percent of East/Central respondents now use an initial joint sessions regularly, compared to 34percent in the Northwest and 23.6 percent in the Southwest. The topics covered and the emphasis during joint sessions are also evolving.
Changes in the use of joint sessions appear to reflect the changing nature and maturity of mediation. When mediation was first introduced into our legal culture, few parties knew about it and most lawyers were unfamiliar with the process. Joint sessions were essential to apprise participants of what to expect, set “ground rules,” demonstrate neutrality, present the mediator’s credentials, agree upon confidentiality, sometimes introduce the parties and attorneys to one another, seek agreement about basic facts, define the issues, reconfirm a commitment to seek agreement, set the agenda and begin negotiations. Although initial joint sessions can still be of value to accomplish some of these purposes and to set the tone, de-villainize the other side, and explore common interests, some of the reasons for joint sessions may no longer exist or the tasks can be accomplished in other ways.
Few lawyers are now unfamiliar with mediation. Experienced lawyers have been exposed to the process in court connected and private settings. Newer lawyers have probably studied mediation and other ADR approaches in law school. If their clients are unfamiliar with mediation, their attorneys have likely educated them on what to expect. Abundant information is available about individual mediator’s experience and style of mediating from the Internet, list serves, their reputation and past cases with them. Mediators are increasingly selected by attorneys for specific disputes after careful vetting. More often than not, the parties and attorneys are familiar with those on the other side and may have no desire to be reintroduced or to hear again from them what they heard in prior negotiations or depositions. Although practices differ, most mediators encourage the exchange of pre-mediation briefs and staff often attend to the agreements to mediate and provide information about confidentiality, which is established by statute and can be emphasized by the mediator in separate sessions. Ground rules, as such, are rarely used now in commercial cases and interests may be more easily probed in the extra layers of confidentiality offered in private sessions. The comments of some mediators indicate that they have experienced joint sessions which have increased hostilities and derailed potential agreements. Based on their experience, and possible discomfort with managing direct conflict, they rather not risk what they see as the downside of initial joint sessions. Their comments imply that they can achieve many of the traditional purposes of joint sessions in initial private settings and determine later in the course of the mediation if an issue specific joint session or one focused on specific obstacles to settlement may be helpful. The comments of other mediators note that they utilize brief, initial joint sessions for “housekeeping” purposes or as “meet and greet” sessions, rather than for more substantive purposes like clarifying the facts, exploring common interests or beginning negotiations. Still others have relabeled joint sessions as “recognizance meetings” or “benedictions.”
It is interesting to note that a majority of JAMS mediators have experienced increased resistance to the use of initial joint sessions (see responses to question 12). The preference of attorneys is a primary consideration in deciding whether or not to have a joint session. Comments indicate a sensitivity to lawyer resistance. “Most lawyers think they are a waste of time …” “I offer services in a crowded mediation marketplace. I heed the market’s wishes on joint sessions.” Attorney resistance, however, like the use of joint sessions, varies by region. The East/Central region experienced much less resistance to the use of initial joint sessions (40.4%), than did the Northwest (80.8%) or the Southwest (66.7%).
While the use of joint sessions in mediation may be shrinking, it is important to observe that they are not totally out of favor. More mediators in our survey considered the diminishing use of initial joint sessions negative rather than positive, although even more regard this trend as neither positive nor negative. There were some emphatic comments in support of joint sessions, expressing the sentiment that “mediation would be unimaginable without them,” they “save an immense amount of time,” and mediation success could be attributed “in significant part to properly orchestrated joint sessions.” Other benefits listed for joint sessions included letting the other party see “the enemy,” serving as the “demonization antidote,” helping in “setting the tone,” and causing “the lawyers to be a bit more credible.” We were admonished not to underestimate “the value of a direct opportunity to be heard.” One respondent wrapped up the theory of why joint sessions work: “It’s all about the ‘contact hypotheses.’ Get them in the same room, treat them as equals, and have them talk together about themselves or their situation.”
The Great Joint Session Debate
Many experienced mediators, academics and mediation trainers have a fondness for joint sessions and can passionately articulate a rationale for their importance. They see joint sessions as philosophically tied to mediation’s core – the idea that people talking face to face, with help from a skilled neutral, have the capacity and should be encouraged to explore and resolve their own differences. However, joint sessions are being increasingly resisted by lawyers, particularly in the West. This frames a debate about the need for joint sessions and the role of mediators in structuring the process.
The use of joint sessions appears to be increasingly case specific. The comments emphasize the importance of their use in complex construction cases, family related matters and in probate and will contests. When joint sessions are employed, the time devoted to specific components is changing. This survey and a previous one conducted by the author indicated less time spent on the mediator commenting on his/her experience and credentials, and less use of opening statements by the parties and their attorneys. For example, “While I routinely have a joint session, parties are not regularly making opening statements. 90% in the past and 20% now.”
Joint sessions may also be mediator specific, recognizing that some highly successful and much in-demand mediators rarely use joint sessions. The work we do today is not your father’s (or mother’s) mediation. Early writing and teaching about mediation, including mine, was premised on then existing experience and realities. The model for mediation came from labor, family, and community dispute resolution, usually conducted in joint sessions, involving cases in which the parties expected their relationships would continue after their differences were resolved. Few people had used mediation or even knew much about it, so mediators needed to educate both attorneys and parties about what to expect and get the mediation started on an even keel, with an emphasis on the mediator’s neutrality. For all this and more, joint sessions were essential.
It is time to recognize changing circumstances and client preferences. Mediators need to deconstruct joint sessions to determine what purpose they currently serve, how they might be restructured, and what other methods are available to accomplish their intended purposes. I now encourage mediators to have pre-session telephone conversations with each side to discuss the mediation agenda and the use of joint sessions. Briefly meeting with each side at the beginning of a mediation to assess their view about a joint session and its structure is also helpful.
Some have labeled the joint session approach “pure” mediation, and by implication, any other approach as not pure. Given mediation’s roots in flexibility and shaping the process to fit the parties self-determined needs, in contrast to more formalistic adjudicative options, insistence by mediators that we decide what process the parties must follow appears to contradict client choice. Yes, we can distinguish process from outcomes and note that the resistance often comes from attorneys (who may have sat through more mediations than the mediator), but to argue that a party’s lawyer, rather than the party, is the one who does not want a joint session risks interfering with the attorney-client relationship and implies that the mediator knows best what a party should do. This mediator-knows-best perspective, whether about process or outcomes, seems the antithesis of party self-determination.
I can’t help but ask if those who regard joint sessions as the hallmark of pure mediation have become the new keepers of the status quo by insisting on the use of joint sessions. Ultimately, the parties in commercial cases, through their lawyers, will choose the process they prefer by selecting a mediator who is known to use joint sessions, one who does not generally use them, or one who defers to the lawyers’ process preference. The mediation market may moot the debate.
The JAMS panel was chosen for the survey because of my association with the organization and the likelihood of a good response rate. The makeup of the JAMS panel is not necessarily representative of the general population of mediators. About two thirds of respondents had been judges, although their answers did not appear to significantly vary from those who had not been judges. We analyzed variations among the three JAMS regions, however, it should be noted that these regions are delineated for JAMS administrative purposes and are not of equal size; they do not reflect a geographical or population triad and are subject to change. The makeup of the three regions at the time of the survey and the number of completed responses from each were: East/Central (New York, Philadelphia, Boston, Chicago, Miami, etc.) = 94; Southwest (Los Angeles, Santa Monica, Orange, Las Vegas, etc.) = 55; Northwest (San Francisco, Silicon Valley, Sacramento, Seattle, etc.) = 54. The survey questions as originally drafted were more numerous and detailed than finally distributed. As in most surveys, a balance had to be struck between desired information and likely receipt of a credible number of completed responses. Our response rate of 76% is credible, but more detail would have been desirable.
The assistance of UC-Berkeley law student Justine Kentla is gratefully acknowledged, as is the continued collaboration of David Brandon, Program Manager of the JAMS Institute.
Larry Fong discusses how the institutionalization of the field has put boundaries around it, thwarting the creativity that was so characteristic of the field's start.By Larry Fong