This article was first published on CEDR Says. Republished with permission. Eileen Carroll QC (Hons) is a SIMC Mediator.
Eileen Carroll, Centre for Effective Dispute Resolution, explains why bringing parties together at the outset is so important.
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.
“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.”
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:
- For the clients to acknowledge each other and demonstrate they can listen
- To tell a story from the perspective of the client
- 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
- For the mediator to get to know the clients and their teams
- For the mediator to help the teams set the right kind of agenda
- 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.