Together or Separate: An Argument for Joint Sessions
There are many opinions as to what constitutes a successful mediation. Some may claim that for a mediation to be considered successful, it must reach an agreement. Others may state that the act of getting the parties to the room is successful and anything else is superfluous. Perhaps the definition of successful is personal to each participant and lies somewhere in-between the two extremes. Personally, I tend to define successful as when the disputants walk away better prepared, better educated, or otherwise better off than when they entered my mediation room.
As a volunteer mediator with the Knoxville Community Mediation Center (CMC), I am afforded the opportunity to participate in a variety of cases – divorce, co-parenting, civil disputes, property disputes, workplace conflict, etc. During a day-of-court mediation at the General Sessions Court, I was mediating a landlord/tenant case and the positions of the two parties were widely divergent. They could not agree on the amount the tenant owed or whether the tenant should even be required to move out. They reached impasse after an hour of heated discussion, and the tenant apologized to me for wasting my time. I took that opportunity to remind the parties that mediation is not simply about reaching an agreement, and the fact that the parties had spent an hour communicating with each other was, in many ways, a success. The parties acknowledged that even though they did not reach an agreement, they did feel better about being able to speak and to be heard.
In another instance, I had the opportunity to work with two pro se, never married parents who were working out a co-parenting plan. The mother had lost custody and had been referred to mediation to arrange a visitation plan with the child. In joint session, the father would push the mother’s buttons and she reacted just has he predicted – poorly. This action/reaction cycle continued until my co-mediator and I opted to have a separate session with each party to help them organize their thoughts so they would be better prepared to speak for themselves when they returned to a joint session. While in caucus with the mother, we asked her to reflect on the communication dynamics in the room. With some space and privacy, she was able to step back and examine ways that her reactions to the other parent’s tactics were counterproductive. While working with the father in caucus, he could organize his needs and desires and determine a means to present those in a positive way.
When they returned to joint session and the father’s provocative behavior continued, she calmly ignored his barbs and continued presenting her ideas. A look of bewilderment crossed father’s face; this unexpected and unfamiliar shift in their dynamic caught him completely off-guard. He tried a few more times to bait her with repeated barbs, but the tone of the mediation quickly changed. They came up with a co-parenting plan that both parties could agree upon and left the mediation in a peaceful manner that may not have been possible had they not been empowered to break their unconstructive communication cycle.
While only one of these mediations reached an agreement, both situations were successful as both sets of disputants walked away from the mediation a bit better off than when they entered. The success of both mediations relied heavily upon the use of joint sessions. In the family case, without joint sessions, the interpersonal dynamics between the individuals would not have been apparent, the mediators would not have been able to facilitate a more constructive shift in their negotiation, and (most importantly) the parties would have missed the opportunity to experience first-hand how each of them had tremendous power to make a change in how they communicated. In the landlord-tenant case, the tenant would never have felt like she had been heard, and wouldn’t have the opportunity to find that level of psychological closure, without that joint session.
Shuttle mediation has proven effective at resolving disputes. When dealing with conflict, it also fills a specific niche in that it provides a protected means of resolving disputes – especially when dealing with situations where joint sessions would not be safe. The dispute resolution market in Tennessee appears to lean more towards this form of mediation, perhaps making it the default style. This may be partially based on a preference of family attorneys who seek out these shuttle mediators. Mediation trainings too are market driven and perhaps the desirability of shuttle mediations has led to the trend in Tennessee to not emphasize joint session skills, even in family mediation training. To utilize joint sessions effectively, the mediator requires training and practice in this aspect of mediation
It is understood that mediation is an effective means of resolving many disputes. Among other benefits, mediation has the capability of helping rebuild, maintain, or end relationships peacefully; empowering the disputants; and aiding in building various skills of the participants. Joint sessions can play an integral part in cultivating these benefits. (Moore, 2003; Deutsch, 2014; Slaikeu, 1996).
It is not uncommon to see clients enter the mediation room as “mortal enemies” and by the end, they are talking and joking like old friends. In a simple Google search of “benefits of mediation,” the top 5 results all promote the notion that mediation can preserve relationships. In response to this proposed virtuous result, Dwight Golann (2002) performed a study regarding the likelihood of mediation affecting the repair of the relationship between disputants. In it, he postulated that, “the skill of the mediator and…the format of the process itself,” had a significant impact on the chances of repairing a relationship through the mediation process.
Morton Deutsch (2014) notes that the presence of a conflict implies some interdependence between the disputants and that there would not be a conflict if the parties were truly independent of each other. However, not all conflicts would benefit from relational repair. Some are a simple transactional endeavor that do not require any emotional probing. Arguably, more would benefit from relational interventions than would not. Even an eviction case stands to benefit from a little relationship building. Like in the earlier example, the tenant gets to be heard and thereby gains some psychological closure. In turn, this may decrease the likelihood of said tenant destroying the property as they leave.
A mediator performing a shuttle mediation may be able to convey some of the emotions from one party to the other, but directly experiencing an act of contrition and seeing the hurt or sympathy in the other’s eyes carries more weight than words ever could. These acts are not always planned and during a joint session, the party’s interactions may escalate the issue and then out of nowhere, in a good spiral, begin to deescalate through mutual acts of empathy and compassion.
Without the direct interpersonal contact afforded by joint sessions, the parties may never observe these acts from the other party and subsequently, never react in kind. While they may still reach an agreement, it may not be the best agreement they could have made. I have seen cases where the landlord came into mediation demanding possession of the house and, by talking directly with the tenant and empathizing with them, have them shift their position, let them stay in the home, and everyone walked out happy.
Conflict and dispute are often considered bad words. Many people actively avoid situations where conflict is probable. It makes them uncomfortable, even if they themselves are not directly involved in it. If they are involved, this feeling is often increased exponentially. When a dispute becomes intractable, the parties often feel helpless or out of control. Participation in the dispute resolution process can have a cancelling effect on the feeling of helplessness, restoring some sense of control.
Mediation, by promoting mutual respect and understanding, can help to free clients from the one-sided dynamic in which people in conflict are often trapped. It can empower them to expand their view and understanding of the situation and see the other person as they are, rather than as a monolithic enemy. This is perhaps one of the fundamental benefits of mediation; the one that resonates with most people. Disputants receive this sense of empowerment when they can stand up for themselves and resolve their issues on their own terms.
Karl Slaikieu (1996) stated that, “The mediator assists each party in becoming aware of the underlying interest and emotional hot buttons that created the conflict of now drive the dispute. Through coaching and other forms of support, the mediator offers a structure that can empower the party to deal with the problem and the other side” (p. xii). Only part of this empowerment he describes can be obtained through shuttle mediation – dealing with the problem. The second portion, dealing with the other side, is somewhat negated in shuttle mediation. While the parties can and do advocate for themselves in the caucuses of shuttle mediation, it is tempered by the design. Shuttle mediation intentionally isolates the partied from each other. Without interpersonal interaction, the felt impact that self-advocacy brings may not as strong as it could be.
To contrast this, the joint session model employed by many mediators promotes conversation between the disputants themselves and not through their advocates or through the mediators. Even when attorneys are present, the disputing parties are encouraged to speak for themselves, rather than through council. Direct interpersonal communication is not without risk, but it does stand to provide a broader range of benefits, including elements of empowerment, over caucusing alone.
Mediation is also a chance for the mediators to model good communication and conflict management skills. Like in the earlier example with the mother and father, it may present an occasion to provide a space for someone to safely examine how their own emotional responses are affecting the negotiation dynamics. Mediation can also provide an opportunity for the disputants to practice building their own communication and emotional intelligence skills. When disputants have an ongoing relationship, as is the case with co-parents, this progress can be critical in helping them navigate their current dispute as well as future ones (and may, ultimately, help them avoid extended court battles in the future). Even when there is not an ongoing relationship, the skills gained in mediation may improve how the parties approach other aspects of their lives. This skill-building opportunity is strongly connected to joint session mediation. Personal interaction between the disputants that is observable in joint session is non-existent when only using separate sessions.
In joint session, the mediators have the privilege of observing the interaction between the two parties and by doing so, they get the chance to assess a clients’ abilities and shortcoming and subsequently apply interventions (as needed) to better empower the clients to resolve their dispute. Shuttle mediation, by design, intentionally eliminates this contact. This isn’t necessarily a bad thing, depending on the situation. As mentioned earlier, it may be advantageous to the parties if they are not allowed to interact for safety or other reasons; it may be useful to offset power imbalances; or this lack of contact may also expedite the resolution of the dispute.
Even in joint session mediation, caucusing is often an essential part of the process. A caucus can (among other things) provide a client with an opportunity to better organize their thoughts, create space for reflection on communication dynamics or acknowledgement of feelings, allow disputants to vent unconstructive frustrations privately, provide opportunities for power balancing or safe termination procedures, and provide a safe opportunity for a client to examine the strengths and weaknesses of their own case. Mediators have an opportunity to work with a disputant on ways to reframe their words, articulate their goals/concerns, or discuss strategies for moderating their emotions when interacting with the other party. Conversely, shuttle mediation places the burden of neutralizing provocative language and communicating ideas and concerns solely upon the mediator. Where this action obviously puts the skilled person in the position of exerting greater control over the dynamics and where lack of contact has it potential benefits, it does not provide opportunities for the disputants to directly practice this for themselves.
In his book, The Skilled Facilitator, Roger Schwartz (2002) explains that there are essentially two types of skilled facilitators. One type is only there to work through a problem; the other type is also there to train some of the group so that they may not need the facilitator’s services as often in the future. This logic can apply to mediators as well. One may choose to be transparent and model good behaviors while simultaneously providing opportunities for clients to gain skills and insights that will help them better cope with conflict. Another may choose to focus their energy on resolving the immediate conflict at hand. Both types will provide some level of skill building, either through direct involvement or through observation. Both shuttle and joint session mediators can be one type or the other (or something in between).
“Learning how to deal with conflicts effectively is increasingly an essential life skill needed by every person and every group regardless of one’s age, social role, profession, cultural background, or beliefs” (Weeks, 1992, p. ix). It has been my experience (both as a mediator and a professor of Fundamentals of Speech at a local community college) that people from all walks of life could benefit from strengthening these skills. As co-parents, these mediation disputants are generally obligated to interact with each other until the child is an adult, as well as through many milestones in their child’s adulthood. In situations where joint session mediation is safe and appropriate, these disputants are likely to benefit from facilitated opportunities to effectively communicate directly, to manage emotions in pursuit of a goal, and to manage verbal and non-verbal symbols to minimize miscommunication.
Many mediations are successfully concluded without the opposing parties ever seeing each other throughout the proceeding and in many cases, this may be the best option and may produce the best result. However, “[t]he ways of dealing with human conflict around the world are legion” (Bartos & Wehr, 2002, p. 1). There is no single best way to resolve a conflict. There is no set template that will maximize the benefits of a mediation while limiting the risks.
Whether you are dealing with pro se clients or staunchly represented clients, the skill-building, empowering, and relational benefits of joint sessions should be considered before blindly resorting to shuttle mediation. For this to be an option the mediator can offer, they must be knowledgeable and well-trained in the practice of joint sessions. Continued training and practice in joint sessions will provide the mediator with the skills necessary to offer this option so that the parties may decide what mediation model would best suit their own situation.
Bartos, O. J., & Wehr, P. (2002). Using Conflict Theory. Cambridge, UK: Cambridge University Press.
Deutsch, M. (2014, August). Cooperation, Competition, and Conflict. In P. T. Coleman, M. Deutsch, & E. C. Marcus (Eds.), The Handbook of Conflict Resolution: THeory and Practice (3rd ed., pp. 3-28). San Francisco: John Wiley & Sons, Inc. Retrieved from Mediate.com: http://www.mediate.com/articles/benefits.cfm
Golann, D. (2002). Is Legal Mediation a Process of Repair – of Separation? An emperical Study, and its Implications. Harvard Negtiation Law Review, 7, 301-336.
Moore, C. W. (2003). The Mediation Process: Practical Strategies for Resolving Conflict (3rd ed.). San Francisco, CA: Jossey-Bass Inc.
Schwarz, R. (2002). The Skilled Facilitator: A Comprehensive Resource for Consultants, Facilitators, Managers, Trainers, and Coaches. San Francisco: Jossey-Bass.
Slaikeu, K. A. (1996). When Push Comes to Shove: A Practical Guide to Mediating Disputes. San Francisco: Jossey-Bass Inc.
Weeks, D. (1992). The Eight Essential Steps to Conflict Resolution. New York: G.P. Putnum’s Sons.
Welton, G. L., Pruitt, D. G., & McGillicuddy, N. B. (1988, March). The Role of Caucusing in Community Mediation. The Journal of Conflict Resolution, 32(1), 131-202.
Wlodkowski, R. J. (2008). Enhancing Adult Motivation to Learn: A Comprehensive Guide for Teaching All Adults. San Francisco: Jossey-Bass Inc.
 CMC is a nonprofit organization that provides mediation services to people so they can resolve and manage their conflicts amicably, inexpensively and rapidly. They utilize volunteer mediators who work in pairs as co-mediators. These equal partners practice a 6-step facilitative style of mediation and generally prefers the parties do most of the resolution work in joint sessions. Among other services, CMC works with the courts to provide mediation in two distinct settings. They screen and schedule cases involving family cases (divorce, co-parenting, etc.) and they provide mediators for a day of court mediation at the General Sessions Court (Small claims court).
 Tenn. Code Ann. § 36-2-303 states, “Absent an order of custody to the contrary, custody of a child born out of wedlock is with the mother.” as opposed to the joint custody married or divorced parents often enjoy.
 It is CMC policy, whenever using separate sessions, that both parties get near equal time with the mediators in separate sessions.
 “Psychological closure means that the parities to a conflict have gained enough emotional satisfaction…to emotionally disconnect themselves from…the conflict itself” (Moore, 2003, p. 332).
 Shuttle mediation consists of a series of separate sessions where contact between parties is buffered through the mediator and little to no direct interaction occurs between the parties.
 This is based solely on observations, web based statements, and other anecdotal evidence.
 Attorneys may be more comfortable with shuttle mediation because of a variety of reasons: they have more control of dynamics in the room, there is less opportunities for the clients to divulge information or strategies in the presence of the other party, they have the perception that the process can be moved along more efficiently if parties aren’t feeding off of each other’s negativity to escalate the conflict, the attorney has more of an ability to actively participate, etc.
 According to personal conversations with Jackie Kittrell, executive director of CMC.
 Especially in day-of-court mediation where the parties are prepared to argue their case in front of the judge and at last minute were directed to mediation.
 An incognito search to avoid Google’s algorithms that match my “preferred” searches.
 Dwight Golann specifically studied “legal mediation.”
 These tend to have strings attached to the tenant staying, but without talking it out directly and working out the conditions, the tenant would likely have been out of the home in 10 days.
 Disputants will try to talk to the mediator, in the presence of the other party, rather than directly to that party. While this is sometimes necessary in higher tension situations, it is not ideal and typically discouraged in the CMC model.
 Caucusing allows parties to be freer with information or contributes to the mediator being either more directive or sympathetic to one party (Welton, Pruitt, & McGillicuddy, 1988)
 Adults learn more from doing than observing. Presenting information and then allowing the leaner to utilize that knowledge engages the learner and reinforces the lesson (Wlodkowski, 2008).