The continuing value of the joint session in ADR

by Leslie A. Berkoff

Traditionally, most mediations began with a joint session and no lawyers were involved in the process. The joint session allowed the mediator to set the tone for, and explain, the process. Over time, lawyers began to be retained by the parties and the process became a precursor to litigation or a stop along the path to the courthouse. The dynamic changed; frequently the joint session evolved into quasi-litigation where the lawyers postured and argued their case, the clients did not talk but rather became more entrenched in their positions and the mediator became a referee.

In recent years, some advocates have requested, and some mediators have decided, to dispense with the use of the joint session. While there are indeed times that a joint session should be skipped (for example when the exchange of vitriol or threatening messages will lead to a breakdown in communications and the overall settlement process), it is still a valuable tool that should not be automatically pushed aside. Remember, mediation is a client driven process and its gives the clients a chance to create a solution that meets both of their needs in a different manner to Court proceedings. Most importantly, it may be the only time clients get to speak to each other directly or speak at all without the constraints and limits of testimony at deposition or trial. So from this mediator's perspective, the session should be utilised judiciously, and when it is - lawyers, please encourage and prepare your clients to speak!

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