The Benefits of the Joint Session in Family Law Matters
| Publication year | 2022 |
| Pages | 26 |
ALTERNATIVE DISPUTE RESOLUTION
by Wesley Parks
This article discusses the benefits of using the joint session during mediation in family law matters.
Shuttle mediation, where the parties remain apart and the mediator moves between them, is often the sole method used in family law mediations, while the many benefits of the joint session are overlooked. Family law practitioners should carefully assess the potential benefits and detriments of participating in a joint session in mediation before nixing it. This article examines empirical studies on mediation that support using the joint session and provides a framework for family law lawyers evaluating whether to recommend the joint session to their clients.
Empirical Research on Mediation
Empirical research on the mediation process and the effectiveness of mediator techniques in family law matters is sparse due to confidentiality concerns and administrative barriers to performing intra-mediation behavioral observations. Research on joint sessions is minimal and focused on the initial joint session, but the limited empirical evidence available about mediation best practices supports the use of the joint session in family law matters.[1] The following selected empirical studies provide insight on mediation best practices in the family law context.
Wissler and HinshawInitial Joint Session Study
Roselle L. Wissler and Art Hinshaw found that the use of the joint session in family law matters has changed dramatically from historical mediation practice, and they suggest that suboptimal settlements may result from fewer face-to-face exchanges between parties.[2]One of mediation's unique process attributes is the use of a combination of joint sessions and caucuses. A mediator will conduct a joint session between the parties and respective counsel together in the same space, whether
" Initial joint sessions usually involve the mediator explaining the process and discussing ground rules, followed by the parties and counsel discussing their perspectives on the dispute."
virtually or in-person. Initial joint sessions usually involve the mediator explaining the process and discussing ground rules, followed by the parties and counsel discussing their perspectives on the dispute.[3] The traditional mediation process also includes caucuses, or separate meetings between the mediator and a subset of the participants. The mediator uses caucus sessions after the initial joint session to move parties toward settlement. Historically, caucus was used selectively, while joint sessions were the primary source of discourse between the parties.[4]
Wissler and Hinshaw found that family law mediation now relies more on the caucus for substantive discussions surrounding the dispute.[5] In their survey of 1,065 civil and family law mediators from eight states across four regions of the United States, Wissler and Hinshaw found that 64% of family law mediators conducted initial joint sessions with the parties and counsel together.[6] In a majority of cases, the initial joint session included only "an explanation of the mediation process and its confidentiality, the mediator's impartiality and role, the parties' roles, and the ground rules for the mediation."[7] Even when an initial joint session occurred, fewer than half of mediators explored informational, interpersonal, or substantive settlement barriers in joint session.[8]The study also revealed that the parties were more likely to make an opening statement and exchange initial proposals in the initial joint session when they were not represented by counsel.[9] The authors concluded, "As a result, the potential to achieve many of the benefits ascribed to parties' direct communication via opening statements in traditional initial joint sessions—both informational benefits as well as the psychological benefits of explaining their views to and being heard by the other party and feeling they had their day in court—is reduced."[10]The next study further supports the benefits of the joint session in family law matters.
The Maryland Study on Child Custody Mediation
In 2018, Lorig Charkoudian, Jamie L. Walter, and Deborah Thompson Eisenber found that the amount of time spent in caucus was correlated with decreased long-term faith in parents' ability to work together toward resolution of future custody disputes. This research was conducted on 130 court-annexed child custody mediation cases involving 270 participants in Maryland (the Maryland Study). The researchers performed a follow-up survey approximately six months after the mediation session and found that participants who engaged in caucus-style mediation,
" Conversely, the Maryland Study found that a mediator's use of joint brainstorming techniques increased parents' belief that they could work together to resolve their conflicts with a range of options after the mediation."
where parties are kept apart in separate rooms with the mediator shuttling between them, felt more hopeless about being able to resolve their conflict with the other parent.[11] In cases where the caucus was used more frequently, parties were less likely to resolve custody disputes on their own six months after the mediation, resulting in subsequent litigation.
Conversely, the Maryland Study found that a mediator's use of joint brainstorming techniques increased parents' belief that they could work together to resolve their conflicts with a range of options after the mediation. Brainstorming techniques included "asking participants what solutions they would suggest, summarizing those solutions, and asking participants how they think those ideas might work for them."[12]
The Maryland Study also found that post-mediation litigation was more likely when the mediator used directive or evaluative techniques, such as providing case analysis, assessing the case's strengths and weaknesses, predicting court outcomes, and recommending settlement proposals.[13] The mediations in this study did not include any attorneys representing clients, but when the mediator employed evaluative techniques more associated with legal practice, the parties were not as satisfied with the outcomes. That may be partly because mediator evaluation tends to lessen party self-determination, which increases the likelihood that the parties will distrust the process and the mediator—and therefore distrust the result of the mediation.[14]Joint sessions can and should be used to increase parties' confidence in the fairness of the process, increase party participation, increase the parties' sense of self-determination, and, thus, promote lasting settlements. The next study supports the notion that mediation training decreases attorney mistakes when advising clients on whether a settlement offer should be accepted.
Attorney Errors in Settlement Advisement: The Kiser Study
Studies have found that attorneys trained in mediation are better able to counsel clients throughout all stages of litigation, including the mediation stage. For example, the groundbreaking 2008 empirical study published by Randall L. Kiser, Martin A. Asher, and Blakeley B. McShane on more than 2,000 California civil litigation cases involving nearly 5,000 attorneys evaluated the magnitude of errors made by attorneys in settlement negotiations (the Kiser Study). The Kiser Study found reduced attorney error rates during settlement negotiations when an attorney with mediation training was involved.[15] In the Kiser Study, an attorney "error" was defined as "when either a plaintiff or a defendant decides to reject an adversary's settlement offer, proceeds to trial, and finds that the result at trial is financially the same as or worse than the rejected settlement offer—the 'oops' phenomenon."[16] The Kiser Study found that, on average, a plaintiff error resulted in
" The mediator creates a safety zone for the disputants, a demilitarized zone...
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