Please Ms./Mr. Mediator, anything but a joint session!

By Richard L. Hurford

A mediation process option in danger of going the way of the dinosaur is the joint session. Lawyers generally hate them and often deem them counter-productive and a waste of time – “Can’t we just get down to business, go to our respective rooms, and start the negotiation process.” While some mediators may agree, virtually every well-respected mediator training program encourages the informed, selective use of joint sessions. A number of accomplished mediators extoll the benefits of appropriately timed joint sessions. An apparent disconnect exists between experienced ADR providers, the clients they service, and the parties to the dispute. Based upon my years of experience representing clients during mediation (my days at Dykema and Ogletree), attending hundreds of mediations as a client (as corporate counsel and director of litigation for Masco Corporation), as well as acting as a mediator, perhaps this disconnect is worthy of some discussion.

A study by the American Bar Association, Task Force on Improving Mediation Quality (2008), http://www. americanbar.org/content/dam/aba/migrated/dispute/documents/FinalTaskForce Mediation.authcheckdam.pdf, determined that one of the major criticisms of mediator practices by experienced litigators is the failure to provide parties with input on the mediation process and how the mediation will be structured. As observed by the Task Force:

“Some mediators and some parties and counsel may, almost by rote, rely upon essentially identical approaches to every case. In most cases, however, mediators would be best advised to make an effort to evaluate each case on its own, and develop a process in coordination with the parties and counsel, that is best suited for that particular case.”

During pre-mediation discussions when the process is explored and agreed upon, and all the attorneys advise the mediator that a joint session is not desired, why does that not just end the story?

After all, the mediator as a service provider wants to provide counsel with the services desired and, in the name of self-determination, arguably should not impose her or his “process will” on counsel. As a result, many mediators are moving away from joint sessions for business reasons (i.e., counsel just don’t want them). Moreover, even if the mediator believes a joint session would be of assistance to the decision makers, why lobby for a process that may prove problematic, difficult to control, or erode the mediator’s credibility with the parties. Indeed, a survey conducted in April 2015 of JAMS neutrals nationwide determined that only 23% of California mediators regularly use joint session (a decrease from 80% 20 years ago). While the decline in the use of the joint session is most notable in California, the trend is national.

The various reasons trial attorneys are wary of a joint session are most familiar to any mediator. Attorneys who undertake even minimal investigation or discovery may believe they are fully familiar with their case and the opposing party’s positions and just want to “get down to the business of exchanging offers and demands.” Some have experienced joint sessions that descended, at best, into unproductive acrimony, and, at worst, poisoned any opportunity for a resolution – stream of conscious vitriol and venting are not necessarily the best path to a resolution. In some cases the relationships between counsel and/or their clients are so tainted that any joint meeting may be unwise. On occasion, the attorney may desire to protect the less than impressive client from the scrutiny of the opposing party’s decision-maker. In some instances this may be the second or third mediation session and having yet another joint session is simply not value added. Also, a power imbalance may exist between the parties, physical, psychological, economic, or otherwise, and there is a natural desire to protect the client. Finally, mediations with joint sessions may increase costs as they do require more work, thought and planning by all the participants and the mediator. In sum, there are numerous reasons for attorneys (as well as mediators) to eschew the joint session. However, mediations are not conducted solely for the convenience of the attorneys and the mediators; the sine qua non of the mediation is to best serve the strategic needs and interests of the client.

As an advocate, I found it important and instructive to provide my client with input on the process that best served the client’s needs. As a client, I sought significant process input including the selection of the mediator whose background and training was best suited to resolve the dispute. When participating in hundreds of mediations as an advocate or as a party, I invariably retained a mediator with process expertise who would conduct at least one joint session at some stage during the course of the mediation (preferably at the outset of the mediation or very soon thereafter).

Perhaps this is simply a reflection of an intractable resistance to change and a failure to embrace the new trends in the mediation process. On the other hand, perhaps embracing the use of a joint session reflected an informed decision on how best to achieve the most satisfactory resolution.

During the course of the mediation, whether in the role of a client or advocate, I had three main objectives that, in my opinion, were critically important to achieving the most satisfactory resolution. In virtually every case the strategic evaluation led to the request for a joint session and in the vast majority of cases it worked.

Objective No. 1: Understanding and evaluating the messages being sent by the opposing party to the greatest extent possible

When evaluating the messages sent during mediation, both obvious and subtle, it is critically important to not only listen to the words used, but evaluate the tone and body language of the individual sending that message. In 1971, Albert Mehrabian published a seminal analysis on communication theory entitled “Silent Messages” that summarized his cutting edge research on the topic. Mehrabian determined:

• 7% of the message pertaining to feelings and attitudes is in the words that are spoken.
• 38% of the message pertaining to feelings and attitudes is paralinguistic (the way the words are said).
• 55% of the message pertaining to feelings and attitudes is in facial expression.

While the mathematical precision of this research has been criticized, no one has suggested the basic premise is false—to fully appreciate the communicator’s feelings and attitudes it is critically important to be attuned to the words, tone and body language used. If one avoids the joint session and the sole face to face communication is to possibly say “hello” in passing before isolating yourself in a separate caucus room, the potential to miss important and critical messages, feelings and attitudes abound. During shuttle diplomacy the mediator will certainly re-frame, paraphrase or even repeat verbatim what the opposing party said, however, one is totally unable to assess and evaluate the tone and body language of the other party. One can learn far more in a direct, face to face meeting with the opposing party rather than communicating through a mediator who may have his or her own filters and restate the message in a way that fails to replicate the full nuance of what was consciously or subconsciously intended.

Objective No. 2: Cultivate Trust to Create a High Functioning Settlement Team

While it is naive to believe one can create long lasting trust between the opposing decision makers (which is not the objective during most mediations), for a successful mediation it is important for the opposing party’s decision maker to “trust” that the opposing party:

• Is committed to the mediation process and the primary desire is to resolve the dispute and all other objectives are secondary;
• Wants to listen respectfully and professionally and desires to truly “understand” (which should never be confused with agreeing) the opposing party’s positions and interests;
• Intends to be “fair” within the decision-maker’s particular frame of reference, interests, and principled professionalism; and,
• Is empathetic with the opposing party’s current position even if the opposing party’s conduct was the cause of that condition (one can always express genuine “regret” for the plight that a party may find itself in).

Trust is critically important to the mediation process as in many respects the mediator and the parties constitute a very short-lived “team” whose sole purpose is to work diligently to achieve a reasonable resolution of the dispute.

Voluminous research on “team dynamics,” and the factors that distinguish a highly functional team from a dysfunctional team, underscores how “trust” is one of the most critical criteria in determining whether a team will be capable of high level performance. While it is totally irrelevant if the opposing parties or their counsel like each, harbor significant resentment, or incapable of trust in other aspects of life after the mediation, if the opposing decision makers can “trust” some or all of the factors outlined above, the potential for the settlement team’s success is significantly enhanced. While one can rely upon the mediator to tell the other party they can trust those in the “other room” are committed to settling, willing to listen respectfully and professionally, desirous of understanding their position, and want to be fair and empathetic, there is no better way to effectively communicate those messages directly and clearly than during a joint session.

At the outset of the mediation there can be incalculable benefit for at least one party to communicate: they are committed to resolving the case reasonably if at all possible; they are committed to listening attentively and respectfully when the opposing party states its position and interests; expresses through rephrasing or otherwise that they truly understand the opposing party’s positions and interests (that also reinforces one has listened attentively and respectfully); establishes the parameters of the party’s frame of reference by stating directly or implicitly that if the other side can prove their case to your satisfaction then you are willing to modify your position and, in return, should the other side fail to establish the elements of their case or defenses then it is expected they will modify their position accordingly; and, appropriately express some empathy for the other side’s position (that can be very powerful in personal injury, closely held business and employment disputes). Experience suggests the joint session is one of the most effective mediation tools to establish such trust.

Objective No. 3: Impact the Opposing Party’s BATNA, WATNA and LATNA

Whether as a client or an advocate, a negotiation strategy was developed prior to every mediation that involved a realistic and comprehensive risk analysis and an assessment of the BATNA (best alternative to a negotiated agreement), WATNA (worst alternative to a negotiated agreement) or LATNA (likely alternative to a negotiated agreement) of all the parties involved in the mediation. These analyses drove the negotiation strategy and the formulation of the appropriate opening demand or first counter. Obviously, positively impacting the opposing party’s BATNA is a critical objective throughout the course of the mediation objective.

The appropriately drafted and exchanged mediation summary is one excellent vehicle to impact the risk analysis of the opposing party (assuming the opposing decision maker and counsel read the summary). The joint session presents yet another opportunity to impact the opposing party’s BATNA in a far more tailored and personal manner. The joint session provides the decision makers a unique chance to gain insights, articulate their interests and needs, and evaluate risk that simply does not exist during any other phase of the litigation. Just to name a few: evaluate the resolve of the opposing party; assess the quality of opposing counsel; understand and consider the emotional drivers of the litigation; evaluate why a decision maker may be resistant to a reasonable resolution; “dry run” the persuasiveness of the of the case that will be presented to the finder of fact; talk face to face with the opposing decision maker in a controlled and confidential setting; and, tactfully underscore the risks the opposing party confronts.

At no other time during the entire litigation process will the attorney and the decision maker have the ability to obtain insights into the opposing party’s interests that may, if not addressed, be an impediment to the most satisfactory resolution. Although most mediations are, in fact, about the money, there are numerous ways to positively impact a party’s BATNA other than merely increasing monetary offers or reducing monetary demands. A decision maker’s resistance to agree to a reasonable monetary resolution may be driven by any one of five very distinct personal interests: 1) fear of change; 2) status quo bias; 3) risk aversion; 4) high uncertainty avoidance; and 5) situational distrust. While an in depth discussion of each interest shall await another day, suffice it to state that each is significantly different and require very different negotiation and mediator strategies. When dealing, for example, with high uncertainty avoidance, non-monetary terms designed to reduce that anxiety can positively impact a party’s BATNA assessment. Also, consider the possibility that one member of the “settlement team,” opposing counsel, may leverage reasonable non-monetary terms to overcome the client’s reluctance to accept what that attorney believes is a reasonable economic resolution.  

These thoughts clearly are not in keeping with the clear trend of moving away from conducting the joint session. That, in and of itself, does not validate or invalidate these thoughts. Like all tools in the advocate’s, client’s and mediator’s tool box, the efficacy of a joint session should be strategically evaluated as to whether or not it can be used to accomplish important objectives. It is not a panacea and if no objective is served by holding the joint session certainly forego the process. Mediations that do not include a joint session do result in resolutions (although I may seriously question whether the resolution might have been even “more satisfactory” had a joint session been conducted). If, however, the joint session can be one of the tools to serve your client’s objectives and achieve the most satisfactory resolution, then a knee-jerk rejection of that tool is not particularly strategic and is certainly not an informed process decision. When discussing process with the mediator and your client, do keep an open mind, solicit the suggestions of the mediator (who was presumably retained for process expertise), and evaluate all possibilities designed to be most effective in meeting the goals of your client.
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Richard L. Hurford is the president of Richard Hurford Dispute Resolution Services PC, a member of Professional Resolution Experts of Michigan (PREMi, http://premiadr.com/), chair of the Macomb County ADR Committee, chair of the Oakland County ADR Committee, co-chair of the ADR Committee of the Federal Bar Association of the Eastern District of Michigan, president of the Michigan Chapter of the Association for Conflict Resolution, and a Distinguished Fellow in the International Academy of Mediators