by Jennifer Shack, Director of Research
Have rumors of the joint session’s demise been greatly exaggerated? Two recent surveys of mediators exploring the use of joint sessions show that the joint opening session is not quite dead, and may be used regularly by about half of mediators. The first survey, of JAMS mediators throughout the US, found that fewer than half of those mediators regularly use joint opening sessions. The second survey, of International Academy of Mediators (IAM) members, similarly found that a minority of surveyed mediators start mediation with a joint session.
As Jay Folberg reports in “The Shrinking Joint Session: Survey Results
” (Dispute Resolution Magazine
, Winter 2016), 205 mediators responded to the JAMS survey, which was a 76% response rate. The survey showed an intriguing, though unsurprising, decline in individual use of joint opening session. Fully 80% of the mediators reported that they used joint opening sessions regularly when they first started mediating, while only 45% reported using it regularly now. Of those who said they did not use a joint opening session, 20% said they regularly or often convened a joint session later in the mediation.
The top three reasons surveyed mediators cited for using joint opening session are: 1) introducing all the participants, discussing the mediation process, and other pro forma matters; 2) discussing confidentiality; and 3) allowing parties to be heard by the other side. A third of mediators looked to attorney preference when deciding whether to use joint opening session, while another third based it on their own general policy and one quarter decided what was best given the nature of the case.
The survey of IAM mediators, as described by Tom Stipanowich in “Insights on Mediator Practice and Perceptions
” (Dispute Resolution Magazine
, Winter 2016), found a greater portion of mediators likely to start with a joint session. The survey asked whether the mediators “begin the mediation with all parties in caucus.” Of the 130 mediators who responded to the survey, 40% said they usually or always started with caucus, while 57% said they never or sometimes did. The assumption was that those 57% who did not generally start with a caucus therefore started with a joint opening session.
The differences in responses to the two surveys may be due to how the questions and response options on the two surveys were worded. The JAMS survey asked mediators two questions. The first asked respondents to check Yes or No to the question, “When you began your practice, did you regularly start mediation with a joint session?” The response options to the question, “Do you now use a joint initial session?” were quite different. The mediators were asked to check one of the following: “Regularly, Often, Sometimes, Rarely, Almost Never.” It is also possible that the differences have to do with the sample for each. The response rate for the IAM survey was not reported, so the responses may not be representative of the IAM membership as a whole.
The IAM survey asked about starting with all parties in caucus, and then provided the response options: “Always, Usually, About ½ the Time, Sometimes, Never.” It’s possible that these questions and response options were interpreted differently from those in the JAMS survey. In any case, the surveys are providing some initial insight into the question whether use of the joint opening session is declining. Next we will want answers to questions such as why some mediators are using it less frequently, in what types of cases it is and isn’t being used, and what impact joint opening sessions have on participant satisfaction.