Mediation Techniques: Is a Joint Session After Mediation a Necessity
OverviewThe question often arises as to whether there should or should not be a joint session of the parties and their counsel with the mediator at the commencement of the mediation.
In my experience, it depends.
The joint session can conveniently permit the mediator to set the stage and assure all that confidentiality will be strictly maintained, give instructions as to how the mediation is likely to proceed and answer any questions the parties or their counsel may have. The same thing, however, can be accomplished in a pre-mediation session with each group separately.
The risk of the joint session at the beginning of the process is that one party or one lawyer may feel the necessity of an overly aggressive expression of the righteousness of her or his position and that expression will lead to more problems than it solves. While I have never had the joint session result in an immediate failure or refusal to proceed, there are times when the work has become much more difficult because of intemperate remarks.
If the mediator is satisfied that there is little or no risk of an immediate breakdown of the negotiating process, the joint session at the outset can effectively establish the rules and procedures. But, caution is required as is a pre-joint session with the parties and their counsel separately to insure that there is little likelihood of disruption.
A joint session after agreement and signing of a short-form agreement frequently will be helpful in persuading all that the settlement is in their best interests and stop the "buyer's remorse" that sometimes comes about.