When I first began a career in mediation, almost thirty years ago, we often needed to convince others of the benefits of mediation. In those days, it was not uncommon to encounter attorneys who were resistant to considering any alternative to trial by jury. Given our limited resources of time and money, I would remind my colleagues of the need to stay focused on open-minded individuals, rather than waste time “chasing dinosaurs.”
Fast-forward thirty years. I find myself teaching mediation, while sometimes defending positions that a newer generation of mediators (not always younger) find antiquated or inappropriate.
Specifically, there are lessons that are fundamental to the mediation process, such as the role of emotions in communication. I have long talked about the positive affect of apology on neurobiology to those who will listen. I’ve rarely passed up the opportunity to explain the many benefits of beginning a mediation process with some form of a substantive joint session, that is, one allowing for direct exchange of information between the parties, rather than a simple “meet and greet” exercise.
Resisting joint sessions
Yet, I’m just returning from a gathering of industry colleagues, all experienced commercial mediators, to whom the question was asked, “How many of you open your mediations with some form of a substantive joint session?” Incredibly, the vast majority, almost 90%, reported not using a joint session. Their response made me wonder, “Am I in danger of becoming that next dinosaur?”
I understand that in the world of commercial mediation, a significant percentage of disputes occur between parties who will not have a future relationship. Yet, what amazes me, is the almost Pavlovian resistance in the mediation industry to the concept of a substantive joint session.
“It’s too hard on my client”
I could fill a white board with all of the predictable objections to my seemingly innocuous suggestion that parties gather face to face to engage in a dialogue. A few of the most common responses are: “It’s too hard on my client,” “It will simply polarize the parties further,” or, my favorite, “We already know what they have to say.” So pervasive has the resistance to joint sessions become, that in many communities, joint sessions in commercial mediations are the exception rather than the norm.
Before this dinosaur goes quietly into extinction, I would encourage us all to reflect on how we arrived at this moment in mediation history. Or, as one of my good friends, a mediator and psychotherapist, is fond of reminding me, “It’s not so important to focus on the ‘know how’ as to understand the ‘know why.’”
For those of us old enough to remember “the good old days” of civil litigation, we can recall time-consuming discovery, crushing expense, unnecessary delays and dissatisfied clients. It was against this backdrop that many of us said, “Enough” and began the search for better alternatives. And, yes, the goal included looking for ways to save time and money, but more fundamentally, we searched for a process designed to meet the needs of those in dispute. We talked about exploring the parties’ interests through a commitment to empathetic listening. We wanted a process that involved the clients more directly, even to the point of pushing them to take ownership of decisions that would often impact the remainder of their lives.
Tearful memories and legal positions
We had learned from neurobiology that it is impossible to separate emotions from rational thoughts. Therefore, it became equally important to attend to the tearful memories as well as the legal positions. As we guided participants through these sometimes difficult moments of confrontation and disagreement, magical things began to happen. Disputes resolved. Relationships healed. We even witnessed an occasional apology.
Despite the fact that these joint sessions were sometimes loud, messy or even borderline out of control, the parties seemed to benefit in ways that we lawyers had never before appreciated. We found a quality of resolution that was never available to our clients in the good old days of litigation.
But now, we find ourselves no longer face to face with each other. We need an important discussion about the role a substantive joint session plays in dispute resolution. Or, will we be content with simply “rolling up our sleeves and getting to work” as a euphemism for separating the parties from the outset and beginning shuttle diplomacy?
Our decisions flow from our mental model
I’m fond of reminding mediators that every decision we make in mediation flows from our mental model or underlying philosophy of mediation. For example, if the mediator’s mental model is transaction focused, or getting the deal done as quickly as possible, it stands to reason that all process-based decisions will reflect that model, and there will be no joint session. However, if the mediator’s mental model reflects an appreciation for the psychological dimensions of human relationships, she will seek to educate and prioritize the value of a direct exchange. Stated differently, if a mediator subscribes to the belief that, at its core, mediation is an interest-based process that seeks to encourage party participation throughout, then he won’t assume that a joint session would be a waste of everyone’s time.
Since I’ve raised the topic of evolution, at least metaphorically, it’s important to look at this trend away from joint sessions from a historical perspective. If our goal as a mediation profession is simply to replace one failed system of dispute resolution with something quicker and cheaper, perhaps this transaction-forced approach will be our legacy. But, if an aspiring mediator truly grasps the “know why,” meaning how we arrived at this moment in time, she will appreciate that a substantive joint session, properly managed, is not just a good idea but also an essential first step toward meeting the needs of the parties.
Alarmed by the trend
Having been in the vanguard of the search for a better approach to dispute resolution for most of my professional life, I am alarmed by the growing trend toward the demise of substantive joint sessions. It’s only through this direct exchange that we can help deliver the quality of resolution that brought so many of us to this profession.
All too often, the decision to abandon the joint session is made without any appreciation for what is being lost. I believe that our industry’s emphasis on getting the deal done to the exclusion of other transformative opportunities puts us on a dangerous path. More than anything, I hope never to become a fossil remnant of great ideas long since passed.