In Praise of Joint Sessions . Geoff Sharp . Mediator .

Joint Sessions

A meeting of all participants in the mediation

Private Sessions / Caucus

A private (and usually confidential) meeting outside the larger group

Joint Session : Opportunity

• For mediators– Gain insight – Demonstrate leadership– Set tone– Be transparent

• For lawyers– Demonstrate skill– Access decision maker

• For parties– Be heard– Listen– Exist party-to-party– Gain understanding– Evaluate

Caucus : Respite

• For mediators– Reality testing– Coaching– Fixing mistakes

• For lawyers– Real advice– Strategize

• For parties– Respite from joint– Reactive devaluation– Explore

What’s the Problem?

• Lack of – Constructive confrontation– Transparency

• Leading to – Mediator manipulation– Unhelpful party behaviours

“Your mother is offering you each $50,000.00.”

I just stick to the facts.

“Your mother is offering you each $50,000.00 but she is very sad that some of your father’s wishes will not now be carried out because of this payment and the cost to the estate while you quarrel over it. She

hopes this proposal will end the arguments and improve family relations.”

I include the emotional dimensions surrounding the proposal.

“Your mother is offering you each $50,000. I have to tell you that her boyfriend

appears to be driving the negotiation in that room. What do you know about his

interest in her estate?”

Raising the question whether it’s a breach of confidentiality to characterise

the “mood” in the other room.

“Your mother is offering you each $50,000. If I were you, I’d counter at $125,000 to see if we can get her up to the $100,000 each of

you want to receive.”

More coaching and facilitation. Is it neutral?

Why the Demise of Joint?

Like all things, the answer is in moderation

Selective Caucusing

9.00am Pre mediation caucus on the day with each of the parties

9.30amMediator’s opening comments in joint

9.45amHigh level party openings in joint - lawyer and client combo -

this often turns into an early interactive session

10.30amIdentification of a sensible approach to the discussion

(what I call the architecture of the day)

10.45amIn depth discussion in joint

1.00pmSeparate for lunch but with the mediator getting a ‘heads

up’ from each group privately over the break and, in a multi party mediation, encouraging any natural (or empathy)

groupings to connect

Open

Understand and Explore

3.00pmCraft proposals in private but importantly deliver in joint – talking to the science and merit of each proposal, often on

the whiteboard

3.30pmRepeat (once, perhaps twice)

4.00pmBy now we have communicated best numbers and the

mediator’s role is to assist to close the gap, often moving off the science/merits. This can efficiently begin by shuttle but can often end with a joint meeting of a strategic mix of

participants (just the mediator and decision makers, just the mediator and lawyers etc) when the gap is sufficiently

narrowed. Expect false impasse here before eventual agreement after small group checks back with their

respective constituents

5.30pmMediator confirms agreement back to the joint group (‘let’s

make sure we are all on the same page’). Expect a few wrinkles here as other minds are applied. Congratulations

but we’re not quite done yet.

Create Proposals

Close the Gap

Confirm and Close

5.45pmConvene a drafting group while the others sit around

chatting/not chatting depending on the day

7.00pm Close (well)

Mediator Techniques for (difficult) Joint Sessions

• Do integrate all realities• Direct contact, but you be the oil• Responsibility for table behaviours with them• Practice extreme transparency

– Caucus in joint– Coach in joint

• Bottom line it (summary statements)

Thank You… it has been fun

Thank you, it’s been fun