As mentioned, I teach an online course at USC’s Gould School of Law, which is couched in employment law and teaches how to mediate from soup to nuts. The book we use advocates the use of joint sessions. But I always tell my students that, for some reason, in California, the parties (especially the attorneys) do not like joint sessions and prefer to use separate sessions or caucuses from the start of the mediation. For the attorneys, it probably involves a sense of maintaining control of the situation and also avoiding making the situation more adversarial than it is already. That is, each party’s opening statement is bound to be wrapped up in advocacy, thus irritating the other party.
Joint sessions have value, though. While the parties may be disinclined to start the mediation with a joint session, it may pay to have one after one or more rounds of caucusing with each party. After an initial separate meeting with each party, it may be valuable for the parties to listen to each other directly to learn their perspective on the matter. One can acknowledge the other party without agreeing.
I raise this point because in a recent mediation, I was able to convince the parties to hold a joint session after my initial caucus with each side. My underlying reason was I found the plaintiff to be adamant about what had happened and in his position. While the plaintiff viewed the matter one way, the defense held a diametrically opposite view. I believed that the plaintiff needed to be heard and acknowledged by the defense as this had not occurred while the matter was ongoing. Indeed, the plaintiff believed that the defendants had ignored him and were messing with him.
After some arm twisting, I was able to get the defense to agree to listen to the plaintiff. The defendant entered the joint session, not intending to say anything but simply listen. But, as past experience has shown me, it did not work out this way. The defendant responded to some extent and even apologized to the plaintiff for hisr trials and tribulations.
After a few moments, the parties went back to their separate rooms, but later on, the plaintiff’s counsel thanked me for having the joint session because now his client had been heard and acknowledged.
Being heard and acknowledged is key to resolving any dispute. It is best if the other party does the hearing and acknowledging rather than a third party such as a mediator (although this may be adequate in some instances).
While the matter has not been settled, I believe that the joint session helped pave the way toward its eventual resolution. Being heard and acknowledged was a key step towards that end.
…. Just something to think about.
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