Every system that improves over time goes through changes. Mediation is no exception. When we began our litigation practice in 1992, mediation was not yet considered the logical path for ADR in all cases. At CMC’s in Superior Court, master calendar judges would typically inquire whether cases were appropriate for arbitration, never even mentioning mediation as an alternative. Eventually, the court identified special settlement judges who would preside over mediations. This led to mediator lists of private neutrals for the parties to select from. Today, most judges now set a deadline for ADR to be accomplished pursuant to current local rules.
As private mediation caught on, the form of the process also began to morph. Throughout the 1990’s, the joint session commenced the majority of mediations. It was a time for counsel to cordially, but forcefully set forth the basis of their positions and to refute head-on the positions of opposing counsel. Clients generally kept mum. Counsel and clients that were well prepared were able to set the tone for the day’s process. Grandstanding or misstating facts was understood to harm credibility. Yet, as counsel became more skilled at introducing demands into the joint session, the focus on exchanging proposals and needs was often replaced by amped up opening statements. Often, by the time the parties separated into different caucuses, positions were set in stone and distrust and anger were the controlling emotions.
Mediators generally learned that the risks of an opening joint session often outweighed the benefits of the initial dual-party communication. In the past decade, the majority of parties to mediation never even saw the other side until a resolution was reached and an agreement needed to be signed. In employment cases, especially those involving discrimination, harassment or termination, far greater benefit was derived from initially speaking with the employee outside of opposing counsel. The emotional aspect of the conduct at issue truly needs to be discussed and assessed before an employee or accused employer can begin the next step of how to resolve the dispute.
Nevertheless, there remains a very viable use for the joint session. It may not be at the start of the day, but its importance cannot be diminished. The joint session, if properly set up, allows the litigants to have a real opportunity to explain where they are coming from and can lead to each side learning something new about the other’s position. Sometimes, progress cannot be made until an employee is able to speak directly to management about what they feel happened or a manager feels that the employee understands the bigger picture. As simple as it sounds, the sharing of a simple “I’m sorry” can often unblock what moments before seemed like unmovable obstacles. As mediators, we are constantly on the look-out for such seminal moments.
So, while the traditional joint session at the commencement of a mediation is no longer the norm, we judiciously use rather than ignore this technique to facilitate progress toward resolution.