In less than ten hours, the Dodgers host the Astros in game 7 of what even this Cubs’ fan concedes may well be the Best World Series Ever! Ironically, instead of being home, I’m in Austin, Texas, attending the 2017 Fall Conference of the International Academy of Mediators.
Based on previous experience, one topic likely to generate significant discussion at the Conference — in addition, of course, to the World Series and the friendly rivalry between mediators from California and mediators from Texas — is the continuing reluctance of California attorneys to engage in joint sessions during the mediation process, in stark contrast to their colleagues from Texas, the rest of the country and around the world.
Outside of California, the joint session is considered to be an indispensable component of the mediation process — one that often leads to cathartic and transformative moments. In California, most attorneys – and many mediators – prefer to avoid the joint session at all costs, usually due to a misguided fear that joint sessions do more harm than good.
In reality, a properly managed joint session often provides the parties with something invaluable to the resolution process: the opportunity to know they have been heard and understood.
A few weeks ago, while mediating a dispute between the buyer and sellers of real property, I had the opportunity — with the support and encouragement of two outstanding attorneys — to conduct a joint session between the parties only, while their counsel waited in other conference rooms. What followed was the thoughful explanation of the buyer’s basis for believing the sellers had concealed material facts during the sale; the respectful rebuttal of those claims by the sellers; sincere acknowledgment by the sellers that they nevertheless understood and empathized with the buyer’s anger and frustration; and a candid exploration of the extent to which both sides were willing to compromise in order to resolve their differences.
To be sure, there are situations in which use of a joint session can create obstacles to resolution, but an intuitive mediator will recognize those instances and adjust accordingly. Discussing the unique facts and dynamics of your case in advance with your mediator will enable you to decide together how — and when — to best take advantage of the benefits an effective joint session has to offer.
In short, the common belief that joint sessions hurt more than they help is more myth than fact. When properly managed, any pain experienced is generally therapeutic, helping to pave the way for healing and the ultimate resolution of the dispute.
As always, it would be my pleasure to assist you and your clients in the dispute resolution process. Please don’t hesitate to contact me if I can be of service.
Best regards,
Floyd J. Siegal
P.S. Enjoy Game 7!!