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Joint Sessions Are Valuable; How to Conduct Them

Many mediators and counsel discourage the use of joint sessions in mediation. Counsel often believe that having the parties together in the same room (either physically or virtually) will exacerbate the tensions already present in the litigation and hinder resolution. Mediators often believe, with some justification, that joint sessions merely provide a vehicle for counsel to exercise their advocacy skills, i.e. "show off" for their client and belittle the arguments of their adversary. Although there is a grain of truth in both points of view, neither justifies foregoing the ample benefits which the joint session provides to the mediation process and to the ultimate resolution of the dispute.

The joint session is the only phase of the mediation in which the parties meet face to face and present their respective positions. In fact, this event may be the only time prior to trial when the parties have an opportunity to meet and address each other in person, rather than being walled off from each other through the thicket of litigation filings.

A skilled mediator must be able to tamp down the litigation rhetoric of counsel and caution them to focus on getting the facts straight and downplaying the parties' differences. Counsel should be told to focus on those issues on which the parties agree. Although counsel may believe that their legal theories are the linchpin of the case, they often are not. Focusing on legal theories often takes the parties, who are usually not lawyers, out of the mediation process. The excessive use of legal jargon does not advance the resolution of the dispute.