“Will I have to sit in the same room as that so and so?”
That’s often the question I am asked when I discuss mediation with clients, or with parties when I am acting as mediator. And the answer to that question has changed significantly over the years.
What are Mediation Joint Sessions?
Historically, mediations began with a mediation joint session. In that session, all of the parties and their lawyers would sit in the same room along with the mediator. Counsel would be given the opportunity to make opening statements which, in many cases, simply served to further entrench the parties in their positions and inflame the other side. It was certainly not conducive to a reasonable or conciliatory discussion of how to resolve the case.
As a result, the practice has changed over the years. I can say that when I began acting as a mediator, my usual practice was to begin with a mediation joint session, but to tightly control the parties. I would review the purpose of mediation, along with the process and the ground rules, and I would then provide my own review of the case as I understood it. I would then invite the parties to offer any comments on my summary, but would avoid allowing them the opportunity to make speeches or otherwise engage in inflammatory conduct.
I also used to ask some fact finding questions about issues that needed to be clarified. But I found that that often led to disputes between the parties and generated an atmosphere that was less conducive to settlement.
Over the years, my practice has changed. I do not go through a summary of the case anymore. Sometimes, I will still have a joint session in which we discuss the purpose of mediation and the process, along with administrative issues like where the bathrooms are located, but I do not get into the facts of the case at all.
I do find that in many cases, it is helpful to have the parties greet each other and spend a brief period of time in the same room. It helps to personalize the matter. That said, I always invite counsel to let me know if, due to the nature of the case or other circumstances, this would be counterproductive. Particularly in cases where just cause for dismissal was alleged or there are issues of harassment, bullying, or sexual harassment, it would not be helpful at all to put the parties into the same room.
Lately, the majority of mediations have begun with the parties in separate rooms. That being said, there have also been circumstances in which it has been beneficial to bring the parties together later on in the process. On a few occasions recently, we have made significant progress in working towards a resolution, but hit a stumbling block with respect to the details of the settlement or the implementation. Sometimes, it will be far more efficient to bring the parties together and discuss those issues as a group so that we can ascertain their true concerns and goals rather than having the information flow through counsel, as I go back and forth between the rooms. In many cases, I will bring counsel together for a brief discussion if there is a factual dispute that cannot be reconciled easily, or some other stumbling block that can be more efficiently addressed through a group discussion.
The Benefit of a Mediation Joint Session
Although parties often know each other, the lawyers have not usually met the party on the other side, and it is often helpful for them to put a face to the name of this person that they have been reading about for so long. And of course, there are many cases in which the parties in attendance at mediation have never even met, since the company may send a representative from HR that never actually met the plaintiff while they were employed by the company. In those circumstances, there is no animosity and relatively little danger in bringing the parties together briefly.
So the simple answer to the question at the start of this blog is that there is no absolute answer.
I should point out that my comments relate to mediation of employment related disputes. For example, in other areas of law, such as insurance, it is almost always the case that mediation will begin with a joint session and with opening statements.
At the End of the Day
The purpose of mediation is to bring about a resolution that is equally acceptable to both parties. Mediators need to assess the case, the issues and the parties in order to determine what will be most effective. Just as different approaches will be more beneficial in different cases – in some cases, the mediator should be more evaluative, whereas in other cases that will be counterproductive- in some cases, a joint session will be helpful but in many cases, it will make matters worse. The onus is on counsel to speak with the mediator either ahead of time, or when they arrive to let the mediator know their thoughts. If one party has told their lawyer that they are entirely unwilling, or as is sometimes the case, terrified of being in the same room as the other side, it is incumbent upon counsel to let the mediator know in advance so that there is no risk that the parties will be put together before the mediator becomes aware of the concerns.
In one particularly memorable mediation that I was involved in as counsel many years ago, the parties had been quite close, but had a falling out, which eventually led to the termination of the plaintiff’s employment with the defendant’s company. We started off in separate rooms and negotiated for several hours with minimal progress. When we took a break, the two parties ended up in the washroom at the same time. When they emerged, they shooed counsel away and went back into a room by themselves. They came out quite a while later and advised counsel and the mediator that they had reached an agreement and would leave it to the lawyers to document it properly. That was a terrific example of a case in which the parties had significant animosity going into mediation and everyone agreed that it would be wise to keep them apart. However, when they accidentally came into contact, it was the best thing that could have happened, as they quickly resolved their differences. Obviously, that is not the typical situation. But it does provide an important lesson: even though we may assume that one approach will be best, it is important for a mediator to keep an open mind and adapt as the situation evolves. And once again, it is important for a mediator to be flexible and be prepared to adopt different processes and different approaches based upon the circumstances.
The only absolute rule is that there should be no absolute rules when it comes to a process for mediation.