Historically, mediations would begin with a joint introductory session with all parties discussing the case together along with the mediator, and the parties having the opportunity to discuss their issues and interests directly in a guided conversation. Mediations would either continue in joint session or move into separate caucuses, depending on the course of the conversation and the preferences of the mediator. In the last 10-20 years, however, it has become increasingly uncommon for mediations to begin jointly.
In “Joint Session or Caucus? Factors Related to How the Initial Mediation Session Begins,” by Roselle Wissler and Art Hinshaw (Ohio State Journal on Dispute Resolution, September 2022), the authors report the findings of the first study to examine the relationships between the way in which mediation opens and a wide range of factors. It found that although many mediators suggest tailoring the structure of mediation to the needs of an individual case, the likelihood of mediation beginning with a joint session is instead tied to whether the parties are represented by an attorney, whether the mediator has a law degree and where in the US the mediator resides.
Wissler and Hinshaw note that there is significant disagreement as to whether joint opening sessions are still needed. Some possible benefits of such a session include that it would provide: a chance to explain to parties the process and the issues at hand and make sure all are on the same page, a chance to open channels of communication and foster understanding between opposing parties via face-to-face communication, and a chance for the mediator to observe the dynamic between the parties and establish a rapport. There are also some who argue that the existence of mediation-informed lawyers and pre-session discussions between parties and mediators, as well as the changing landscape of mediation proceedings (which frequently includes more “impersonal” civil and commercial cases with little or no pre-existing relationship), obviate the need for these sessions.
Many mediators and lawyers, rather than advocating for or against joint opening sessions, suggest tailoring the structure of the mediation to the needs of an individual case. They indicate that joint opening sessions may be helpful in situations where litigants may not be well informed about each other’s positions and/or when there exists a continuing relationship between parties. On the other hand, joint opening sessions may not be recommended if the relationships between parties are highly contentious, or when violence or abuse is involved.
To examine the factors involved in how mediations begin, Wissler and Hinshaw conducted a survey among civil and family mediators with publicly available contact information in eight states across the US. They limited participation to those who had mediated civil or family disputes (outside of small claims or probate) involving only two parties within the US in the last four months. Out of 5,510 mediators who received an email invitation, 1,065 (19.3%) responded. Respondents were asked to focus on their most recent concluded mediation in their responses. Both family and civil mediators’ cases mainly came directly from lawyers or court mediation programs/judges.
Wissler and Hinshaw found that joint opening sessions have not been replaced by pre-session communication, as there is no correlation (or in civil cases, there is a slight positive correlation between pre-mediation communication and…) between whether litigants are present in pre-session communications and whether the mediation begins in joint session. Joint opening sessions have also not been obviated by litigants being more informed (either by the mediator in pre-session communication or by their lawyers) about the mediation process and the issues at hand. In general, issues discussed in pre-session were more likely to be brought up in the mediation session proper, not less likely – so these communications are not taking the place of communication in a joint opening session.
Similarly, the findings suggest that the way mediation begins is not strongly related to dispute characteristics (such as disputants’ prior experience with litigation; the presence of non-monetary issues in the case; or the presence of abuse, harassment, or violence between disputants). Joint session was more likely when litigants had the goal of speaking face-to-face (90% vs 70% in civil cases, 92% vs. 54% in family cases) or preserving their relationship (86% vs 63% in family cases), suggesting that it is more likely to occur when litigants have goals that are in line with a desire to communicate directly with the opposing party.
Several sets of findings address the hypothesis that lawyers generally do not wish for joint opening sessions. Mediation was less likely to begin in joint session when the mediator had a legal background or a history as a neutral evaluator (59% vs 77% in civil cases), or when one (67%-82%) or both (57%-72%) of the disputants was represented by an attorney, compared with when neither disputant had an attorney (88%-95%). It was also less likely to begin in joint session in cases referred from lawyers (33%) compared with any other source, and less likely to begin in joint session when mediators said the lawyers were the parties with the most influence over how mediation began (17%).
The state in which the mediation took place had a large impact on likelihood of beginning in joint session, as did the mediator’s history in terms of how frequently they opted to begin in joint session. Out of the states surveyed, mediation is most likely to begin in joint session in Maryland, New York and Illinois and least likely to do so in Utah.
Wissler and Hinshaw note that, taken together, the findings suggest that the recommendation to determine how mediation begins on a case-by-case basis, tailored to the nature of the particular dispute and the needs of the disputant, is largely disregarded.