If like me you were unable to pop across to Singapore for the First Asian Mediation Association Conference you will have to make do with reading Geoff Sharp’s address to the conference In Praise of Joint Sessions. It is an interesting and informed read as you would expect from Geoff. He suggests that where once mediators were divided by the facilitative versus evaluative argument there is now a shift to categorise along the dialogue based versus the separation based lines. In other words, mediators who use joint sessions extensively compared to mediators who use them just for an opening meeting and possibly not at all.
Geoff says the default model for mediating legal disputes in Australasia has the joint meeting as its engine room. That is certainly a different approach and emphasis to what I was taught during my training. However I have detected a shift – not yet to relying more on joint sessions – but at least to extending the opening session beyond the somewhat formulaic exchange of opening statements and housekeeping announcements.
Geoff suggests that Fear is the new F word. At paragraph 7 …
Whether it is the wish of the ‘market’ to have a more settlement conference orientated process or it is at the initiative by mediators — we are seeing less joint sessions because of FEAR.
Fear by lawyers, parties and even mediators, fear of the uncertainty and lack of control that comes with people in dispute being in the same room at the same time – because one thing we can all agree on; you can’t script a joint session, anything might happen. Unlike a courtroom, there are no real rules and once the structure of the opening ‘speeches’ is spent all those involved will have to react in the moment as a participant in (on one level) an uncontrolled environment.
After warning of the danger of potential mediator manipulation when the transparency of joint sessions is removed he concludes that mediators are getting lazy and taking the easier option of shuttle mediation …
I have resisted thus far saying what I really think of a mediation process where the parties never meet as my aim is to present a balanced debate. But I cannot conclude without observing that, in my view, shuttle mediation has arisen, in part, out of a laziness by mediators. Why? It’s just easier to work separately – it’s far less effective in so many ways, but it is easier. Because, you see, the air is just not as thick in caucus and it takes less effort to breathe there.
It is an excellent read and I recommend it to you. Finally what inspires me about great mediators is how much they care for and value the profession. Geoff asks whether or not we should be bothered about any shift away from joint sessions if that is what is happening. Regardless of what you think of his opinion it is instructive that Geoff says “we should care passionately”. That is one of the reasons why Geoff’s blog is always worth looking at (sadly Geoff has now suspended his blogging activities).
As always please feel free to comment and share your views – is the joint session used enough or too much in UK civil mediation?
