The use of the joint session in mediation has been a hot topic of study and debate in recent years. I have weighed in on the discussion. In June 2015, I questioned whether the joint session was a help or a hindrance and then in December 2015 I revisited the debate to offer my thoughts on why the joint session remains an important part of the mediation process. In November 2015, I was interviewed by the Law Times for a piece on the use of the joint session.
On June 7, 2016 I had the pleasure of participating in a program titled Joint Sessions and Opening Statements in the Mediation of Civil Disputes. The program was hosted by the Ontario Bar Association (OBA) at their Toronto Conference Centre. The format for the program was a panel discussion. Mitchell Rose did a great job chairing the program and moderating the panel discussion. Joining me on the panel were Alicia Kuin, Barry Fisher and Suzana Popovic-Montag. The panel discussion focused on the following topics: the use (or non-use) of the joint session in our mediation practices and why; whether the amount of time budgeted for a mediation impacts our decision to hold a joint session; the value of opening statements from counsel and the qualities of an effective opening; and, in order to satisfy the always popular “professionalism component,” the types of behaviour that could be construed as unethical during a joint session. We had a lively discussion and many excellent questions from attendees. It became abundantly clear that while mediation style influences the decision to conduct a joint session, cultural norms in various practice areas play a significant role in determining the extent to which joint sessions are conducted.
?Over the past year, I have been studying the use of the joint session in my mediation practice and the OBA program offered a perfect platform to present my preliminary observations and findings.
?In conducting the study, I set out to examine and measure the following:
- frequency of use of the joint session
- how the joint session is utilized
- how type of dispute impacts the use of a joint session
- to what extent the use of a joint session impacts the duration and outcome of mediation
I have reported my preliminary observations and findings in a paper titled Opening Impressions: Study of the Use of the Joint Session in Mediation, which I shared with those attending the program.
While I encourage you to read the full report, the following are my key observations and findings:
- The duration of mediation is not affected by the use of a joint session.
- Mediations that had some form of joint session and lasted longer than four hours enjoyed a much higher settlement rate (90.9%) than those mediated strictly through caucus and shuttle negotiation (57.4%).
- Overall, mediations that had some form of joint session settled at a higher rate (72.7%) than those that did not have a joint session (69.2%).
- Cultural norms do, in fact, play a significant role in determining the extent to which a joint session is used.
The presentation of my study at the OBA program has sparked interest from within the legal and mediation communities and some activity on Twitter.
I intend to continue monitoring my mediation practice using the criteria established for the study while, at the same time, exploring ways to enrich the study by refining the methodology and/or expanding the categories for data collection. I welcome your input and encourage further debate!