JAMS ADR Blog by Chris Poole
East and West Coast perspectives came together in a recent article entitled “Joint Support for Joint Sessions” published on Law360.com. Authored by two of our highly experienced neutrals, Michael Loeb, Esq. on the West Coast and Jerry Roscoe, Esq. on the East, who have developed their own unique mediation styles over the lives of their careers. Each presented strong arguments in favor of the joint session, which has changed over time and evolved differently on either side of the country.
Mr. Loeb points out that when he received his first mediation training almost two decades ago, the joint session was standard practice. As mediations became more common, however, many lawyers began to see the joint session as “polarizing.” Over time, more mediators conceded and mediations have gone from always having a substantive joint session to not having one at all.
He argues that rather than seeing a joint session as polarizing, an experienced litigator should take advantage of the opportunity to make important points in front of his or her audience, just as he would a judge or jury. Additionally, briefs, which have come to take the place of a joint session in many cases, are very often inflammatory. Mr. Loeb suggests the joint session could be the first chance for constructive progress. Or used later in the day to keep momentum going if a settlement is possible but stalled.
Mr. Roscoe also notes the significance of the joint session as one of the founding principles of mediation. He sees it as providing a different kind of opportunity for the parties involved.
The joint session for Mr. Roscoe offers parties a chance to not only explain their perspectives, and see who is participating from either side, but also to “vent.” He too argues that while this type of meeting can be uncomfortable – precisely the reason more advocates request to forgo it – this period of exploration and catharsis is very helpful for the long-term resolution of disputes.
An additional benefit to the joint session in Mr. Roscoe’s experienceis that confidential pre-mediation briefs, as opposed to those exchanged by parties in the place of a joint session, tend to contain more useful information for the mediator. And in the end, much of what gets mediated is from the joint session, rather than the briefs.
In discussing his observations with colleagues, he determined that he was not alone in the conclusion, and it seems that many East Coast mediators have begun to shift back to the joint session model.
While their reasoning may differ slightly, both neutrals strongly agree in the power of the joint session. Whether they depend on it to set the tone for the day, open up critical lines of communication, shed light on the personal stories behind the briefs, or simply allow parties an emotional release, both will continue to rely on it as a critical tool in their mediations.
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