I had a chance a while back to attemd a training session with Gary Friedman, a mediator in Northern Calilfornia, who is known as one of the foremost practitioners of joint session mediation. In fact, Friedman insists on conducting mediations start to finish with all parties in the same room. He will not even read mediation briefs marked as confidential, and he refuses to hold any information discussed with him during a mediation in confidence with respect to the other parties. If the parties to a mediation run by Friedman want to hold a private caucus, Friedman allows that, but they have to do that without without the mediator present.
Since I am also a believer in joint sessions, I was very interested in learning how Friedman does it, and I followed up the training session with Friedman by buying his book, Challenging Conflict: Mediation Through Understanding, which I found very worthwhile. The key word in the title is “understanding,” which Friedman repeatedly emphasizes is the essence of his technique. If you agree that the best means of resolving conflict is bringing the parties to a better understanding of both their own situation as well as the perspective of their adversary, then it makes a lot of sense to suggest that the best way to achieve that understanding is for parties to communicate directly with those with whom they are locked in conflict. If the mediator is shuttling back and forth from room to room, the parties are denied that direct communication.
But locking the parties up in the same room is not sufficient. If the parties just use that opportunity to reiterate their positions, and continue their argument, a joint session might devolve into a shouting match that does not bring them any closer together. The mediator’s job is to prevent that from happening. We do that by making sure that what each side says is heard and understood. One way to do that is to use a technique Friedman calls “looping,” where the mediator summarizes what a party has just said, and then checks to make sure he has it right. In an earlier post, I described an even more sophisticated technique called “affect labeling,” where the mediator identifies the emotional state of the speaker.
I also find it helpful to coach both sides about the value of joint sessions before we start, and how to best use our time in that setting, explaining that the purpose is not to practice our opening statements and closing arguments on the other side, but rather to genuinely listen and try to understand the other side’s perspective on the conflict. Often the parties, and especially the attorneys, are reluctant to participate in a joint session, as they have become comfortable with the prevalent caucus style of mediation. I often have to spend some time trying to persuade people of the value of getting all the parties in the same room. Usually, but not always, participants are willing to try it, despite their reservations.
Unlike Friedman, I rarely keep parties in the same room for the entirety of the mediation, nor do I consider that necessary, though I can appreciate the ideal of conducting the entire mediation in a transparent manner. So I might start the mediation with short caucuses with each side, then proceed to a joint session, and then back to caucuses or other groupings, and then perhaps back to a joint session. All the moving around keeps things lively. And when an attorney or party who starts out skeptical of the value of joint session, tells me at the end of a session that he or she now sees the value of trying it, I feel we have accomplished something important.