An Option for When Joint Session Isn’t Advisable

Facilitative mediators prefer to maximize time in joint session, because the parties are the decision-makers and together they can create their own unique resolution of their conflict. But there are times when it is not advisable for parties to be together in the same room, e.g., when the emotional tension between them would make any face-to-face conversation counter-productive. In such a case, mediators typically separate the parties (and their attorneys) and conduct everything in caucus.
One modification of “all caucus” is to bring everyone together at the start, to listen to the mediator’s opening, then immediately separate. This at least allows the mediator to deliver the introduction only once. But some parties are so volatile that they cannot tolerate even that.
I recently tested another option: invite each party’s attorney to sit in on the other side’s opening. This is especially beneficial when the parties have not yet been deposed, and the party has not met opposing counsel. It allows the party to assess opposing counsel’s knowledge and skill, and allows counsel to assess the opposing party’s sincerity and veracity. It provides an opportunity for some of the good things that happen in joint session, without the risk of a full joint session.
The parties were former business partners but now one was living with the other man’s wife, so their attorneys were understandably reluctant to have their clients meet together. Defense counsel and I met first with the plaintiff and his attorney; I explained the mediation process, then invited the plaintiff to describe why he was in mediation. The setting was collegial enough that both defense counsel and I were able to ask the plaintiff questions, and defense counsel learned a lot about the plaintiff that I could not have conveyed verbally to the defense if they had not met the plaintiff personally.
Then both attorneys and I went to meet with the defendant. I explained the mediation process, then we all listened to the defendant’s viewpoint. After that, each attorney wanted a chance to talk with his client privately, then I caucused with each side, where they developed proposals. Because each attorney was now somewhat comfortable in the other party’s presence, one attorney delivered his proposal in person to the other side, so they could ask questions directly of the attorney instead of having the proposal filtered through me.
Due to time constraints, the case did not settle that day, but I think our modified process contributed to better understanding, and a little more efficiency, than if the parties had met solely in caucus.
If “joint session” means all mediation participants are together in the same room, and “caucus” means the mediator meets separately with each party/attorney, then what do we call a meeting of both attorneys plus one attorney’s client? A “partial joint session”? At any rate, it’s another process tool for facilitative mediation.


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