The Value of Joint Sessions – Dynamic and Engaging

The recent 2018 biennial CEDR mediation audit reported mediators observing a significant resistance (25% of comments) to joint meetings at the start of a mediation day. The audit shows that this resistance appears to be largely driven by lawyers who argue that no purpose is served by these meetings as parties are already familiar with each other’s cases.

I have been mediating for 30 years and still remember my first experience in San Francisco, 1989. It was a construction dispute that rumbled on for many years through the state courts and ultimately a judge ordered the subcontractor to attend the mediation. The first thing the mediator did, in a full joint session, was ask the subcontractor whether he was content to take part in the mediation. The mediator recognised the subcontractor had been mandated to attend, potentially impacting his commitment to the process, and choose to address this issue head-on and early in the day. The reply came, “now I am here, I will stay.”

This was a pivotal moment in the mediation and demonstrated why bringing parties together and cementing their involvement and buy-in at the outset is very important. When I started mediating solo in 1996, my instinct was to meet with the parties privately and to talk and coach them in preparation for the first joint session.

Avoidance, and the outsourcing of issues to a range of experts, lawyers and judges are often at the heart of the conflict. The mediation process draws the client back in, giving them the potential to engage with the problem and recover control.

I have observed many different decision makers at the mediation table, and a mediator has to quickly grasp an understanding of their personalities and expectations. The one thing they all have in common is the desire to gain more control, to exert their influence. It is the mediator’s job to help the teams get the most from the joint session(s) and this means engaging with them first and providing continual feedback on their approach alongside coaching on how best to work with the other team.

The value of Joint Sessions, an opportunity:

  1. For the clients to acknowledge each other and demonstrate they can listen
  2. To tell a story from the perspective of the client
  3. For each team to watch and observe the other team and to listen – all very helpful to get a sense of the potential negotiations to follow
  4. For the mediator to get to know the clients and their teams
  5. For the mediator to help the teams set the right kind of agenda
  6. To manage expectations about the process and the content

All of these factors help build an effective and well run mediation and that is the job of the mediator, to ensure the clients get to work with a well-run process.

Examples of Effective Joint Sessions

Earlier this year I mediated the second day of a mediation, the first day of which had taken place in the year previous. The matter had multiple claimants and two defendant entities. During the first joint session, it became clear I had two particular individuals who could be key to unlocking the impasse. We had many subsequent joint sessions with them, all well as their teams, but the first was absolutely critical in identifying the key individuals.

Another second day mediation in an IT dispute in the health sector. Before any joint sessions, I had a meeting with the two CEOs privately to discuss how we could work productively together. I recommended we have two joint sessions with Party A going first and then a break, followed by Party B. This worked well and enabled us to build momentum and dialogue which brought the dispute to final closure.

The Importance of Joint Sessions

In my experience, problems are not resolved and issues do not get understood when parties remain encased in small rooms with the mediator merely acting as a messenger.

The mediation process needs to be much more dynamic and engaging. It is my responsibility as a mediator to help clients and advisers have productive joint sessions. It is my job to help advise what will work and support them in a way that makes these meetings valuable.

Described by clients as “utterly brilliant” (Who’s Who Legal), Eileen is one of the most sought after mediators in practice today and is repeatedly praised for her energetic and direct approach. As co-Founder of CEDR, after working as a lawyer in the US, she pioneered the use of mediation in Europe.

To book Eileen as a mediator, contact the CEDR Commercial Team at adr@cedr.com or call 0207 536 6060.

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One Response to The Value of Joint Sessions – Dynamic and Engaging

  1. Tony Allen 28/09/2018 at 10:25 #

    I absolutely agree with Eileen that joint meetings are a vital part of almost all mediations and should only be skipped if it is clear that the parties simply cannot, at least at the beginning of the day, bear to meet, despite our trying to persuade them of the value of doing so ( which I think we should always convey). I speak as one who mediates clinical negligence claims almost exclusively, where the “human” element is unavoidable. But this is not to say that the absence of a joint meeting at the beginning of the day prevents or makes desirable a later joint meeting. In two out of three mediations in this last week, the claimant or family firmly rejected the idea of meeting the defendant NHS Trust early on, but later changed their mind and had really constructive meetings with just the claimant and a defendant representative and me, without lawyers.

    I am now finding that the first joint meeting in clinical cases, where all attend, has the value of allowing the claimant to meet the defendant decision-makers, which attends to the imbalance of power they often feel coming into a dispute. Until then they usually feel that they are suing a faceless hospital Trust or the NHS. To meet two or three defendant representatives with authority to listen and settle reduces the scale of the dispute to a human level. We will then usually deal only with the human aspects of the dispute, allowing apologies to be conveyed personally and directly (even if a written apology has previously been sent, this sets a good tone) and giving claimants a voice to express the impact of what happened on them and their families, which humanises the claimants for the defendant team and they often find this extremely helpful. We will usually take a break after such a meeting, and reconvene to talk about medico-legal issues between lawyers, sometimes with the claimant present too, if they so wish and are resilient enough to hear the debate. Lawyers hardly ever have the need, or indeed choose, to rehearse their previous position, whether the joint meeting is early or late. Debates are always about clarifying, underlining points and ensuring that the other side understands each side’s position before revisiting their risk analysis.

    I am hearing of a trend among counsel who act as mediators in clinical claims that they eschew joint meetings entirely and only shuttle between rooms, just like a round table meeting, which has been familiar territory for them in recent years. If this is true, the parties are missing out ion a really significant additional benefit from the mediation process. If lay parties are kept separate from each other they cannot communicate at any level, and in clinical negligence mediations of all types of mediation, research shows that such non-monetary benefits, both in terms of participation and conversation and in terms of non-monetary outcomes are fundamentally important. Such barrister mediators need to change their practice, or those choosing mediators should tailor their choice to suit the needs of the parties.

    Tony Allen

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