By Christina L. Scott, J.D.
Not long ago, I was speaking with a new lawyer about the steps involved in the mediation process. The lawyer was surprised to hear that there is a part of mediation called a joint session because he had never seen this part of the process. I explained that many family lawyers wish to go straight into caucus after the mediation guidelines and avoid the joint session which includes the opening statements by the parties. I have been given many reasons for this over the years. The reasons have ranged from issues of past intimidation or manipulation, high conflict between the parties, or high conflict between the attorneys. Many times, it’s a concern that the opposing party or attorney will say something to upset the client or attorney and shut down negotiations. This is a valid concern. However, consider the possibility that the case may get resolved if the parties are able to face each other and express their wants and needs in person. What???? I know what you are thinking….… You’re thinking that’s impossible. Well, not entirely.
I have conducted some mediation's in which the entire case was resolved because of what happened in the joint session. In some of these caucus was never used. And all parties, attorneys included, remained in the same room! To witness this is to witness what I call “the magic of mediation.” What is this magic you ask? Well first, I believe it’s the fact that a little discomfort and conflict can bring about resolution. For example, in a recent family law case where the joint session was used, the parties were the driving factors. After the attorney’s made their opening statement, the parties spoke candidly about the issues and had an opportunity to get some frustrations out in the open. They were able to get beyond “appearances” and down to the “nitty gritty”. Surprisingly, many of the things the parties agreed on was very different from what their attorneys were advocating. This brings me to my second reason. Magic can happen when the parties can truly negotiate what works for them. I realize that there is a fine line between the legal argument or right versus what works for the parties. The reality is that parties are better able to live with something they decided, and they always know their situation better than anyone else in the room. Of course, counsel is there to advise the parties on all points of law as it relates to their agreement. The ultimate decision though is with the parties.
I realize that not all cases are able to be resolved in the same room. Each one has its own unique dynamic. In some cases, parties most certainly need to be separated. However, consider the joint session as a necessary key to the next step. This key can provide clarity and efficiency to the process and open the door that brings the parties closer to resolution.