Whither the Joint Session

Recently I represented a client in a mediation at which the mediator – from New York – told me that he would not hold a “joint session” (i.e., a discussion in which all the parties or their representatives, personally, and all counsel, are present, and at least “opening statements” are given) unless the parties required one.  The reason he gave was to avoid putting my client, a 72-year-old widow, in a stressful situation. I was skeptical, but agreed.  (The case did not settle, though I cannot necessarily blame that on the lack of a joint session.) 

Since then I have researched the mediation literature, and found that in many areas of the U.S. mediators are recommending to the parties that the joint session be dispensed with and that the mediation consist only of separate caucuses.  The reason typically given is, as above, the potential volatility of the parties or their reluctance to be in the same room with their opponent.

After that research, and discussion with numerous other mediators, I believe that a joint session, properly structured and moderated, generally increases the likelihood of a settlement, and a fair one.

Negatives of the Joint Session

A number of reasons are given for dispensing with the joint session:

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