Mediation – Is the Joint Session Still Alive?
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Most lawyers are familiar with the ordinary sequence of a mediation. Typically, the mediator conducts a pre-mediation call with the lawyers and sometimes the parties, introducing everyone to the mediation process and inviting the participants to discuss any issues that may affect settlement which are important for the mediator to know in advance, and discuss any concerns a party might have about the process.
On the day of the hearing, the long-held practice has been to commence the mediation with a joint conference among all of the parties and their counsel before breaking into individual caucuses. Proponents of the joint session believe it provides an opportunity for each participant—either directly or through counsel—to express their view of the case to the other participants, and talk about how they would like to approach settlement. For some, the goal is to begin the settlement process among all of the participants together before the mediator begins working privately with each side.
Recently, however, there has been resistance to the joint session. A recent survey of JAMS neutrals conducted in April 2015 revealed a decline in the use of the joint sessions. 80 percent of the neutrals surveyed reported that they used joint sessions when they first started mediating—ranging from four to 20 years ago. In 2015, only 45 percent regularly use joint sessions. There are regional differences. On the East Coast (where mediation was not embraced as quickly as on the West Coast), almost 70 percent continue to use joint sessions, but in Southern California that figure is just 23 percent.
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