Whenever mediators convene at conferences or more informal collegial gatherings, one topic sure to arise is the value and viability of beginning a mediation with a joint caucus. During the early days of the “mediation revolution,” which most alternative dispute resolution scholars acknowledge began with the 1976 Pound Conference, formally dubbed The National Conference on the Causes of Popular Dissatisfaction with the Administration of Justice, an opening joint session was more or less de rigueur and considered an essential element of the classic facilitative mediation. It was perceived as providing an opportunity to set forth and agree on all ground rules and procedures, for abbreviated openings by both parties, but most importantly for each party to hear directly from the other side and similarly to be able to express its position to the other side. The benefits of concepts such as venting and catharsis were considered to be significant: parties were known to have stated that the opening joint caucus gave them their first opportunity to be heard directly by the other side.
In the ensuing years, some mediators cooled their enthusiasm for the once-untouchable opening joint session. Uncertainty developed as to whether it truly paved the path to resolution. Some reported that parties only came to the mediation table after much coaxing in a sort of fragile truce and that hearing the unvarnished claims and accusations of the opposing party caused the chances of settlement to deteriorate. An article in the Wall Street Journal by Elizabeth Bernstein last year reported on research which indicated that while people might feel better after venting, it often causes anger and aggression.
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