The Value of Joint Sessions

by Eileen Carroll QC (Hon)

17/10/2019

by Eileen Carroll

The 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 remember my first mediation experience in San Francisco, 1989. It was a construction dispute that had been running for many years through the state courts and ultimately a judge ordered the subcontractor to attend the mediation.

The first thing the mediator did was ask the subcontractor whether he was happy to take part in the mediation. Recognising the subcontractor had been mandated to attend, potentially impacting his commitment to the process, the mediator chose 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.

Avoidance, and the outsourcing of issues to a range of experts, lawyers and judges are often at the heart of conflict.

The mediation process draws the client back in, giving them the potential to engage with the problem and recover control.

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 and 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

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 there were two particular individuals who could be key to unlocking the impasse. We had many subsequent joint sessions with them, as 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 a close.

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.