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Controversy About How Mediations Begin

What is the best way to begin a first mediation session? Some mediators start with a joint session (where the parties and their lawyers, if any) are present. Others prefer to begin with caucusing (meeting with each party, and their lawyer, separately). Research in the U.S. indicates that this divide is widening with more mediators using a caucusing approach to open discussions.

But WHY is this happening? To date, there has been little empirical research into this important topic.

The good news is that Art Hinshaw and Roselle Wissler (both of Arizona State University) have recently reported on a large research project which explores the relationship between how the mediation begins and a wide range of factors, including the type of dispute, mediator characteristics, lawyer involvement and pre-session communications.

Joint Session or Caucus? Factors Related to How the Initial Mediation Session Begins

The study involved survey data from over 1000 mediators in eight U.S. states. 67% were civil cases (including tort, contract, employment and property/real estate) and 33% were family cases.

The study found that the following five factors had the strongest relationships with whether the mediation began in joint session or caucus in both civil and family cases:

  1. How frequently the mediators typically begin their mediations in joint sessions as part of their usual mediation practice.
  2. The state where the mediation took place.
  3. The person or entity that the mediators said had the most influence on the decision how to begin the mediation.
  4. The combined set of dispute characteristics and disputant goals.
  5. The case referral source.

The first factor was by far the mostly strongly related to how the mediation began. I find this the most intriguing point. Many mediators admitted that they often or always begin the first mediation session in the same way in the disputes they typically mediate. They use a template rather than carefully choosing an approach best suited to the needs of the parties or the characteristics of the dispute (as recommended by proponents of “dispute system design”):

“Taken together, the findings suggest that recommendations to determine the structure of the opening mediation session on a case-by-case basis and tailor it to the needs of the disputants and the dispute are largely disregarded.”

This finding raises all kinds of interesting questions that require further research, including:

  1. This study was conducted in the United States. Would the same results occur in Canada? My mediation training in the early 2000’s assumed a joint session at the outset. Is that still the case in current training programs? Once in practice I quickly realized that approaches varied between mediators and types of cases.
  2. This study was based on surveys of mediators only. Mediators were asked about the goals of the parties. The parties were not asked directly. I wonder what input, if any, clients had into the decision about how the mediation began.
  3. What motivates mediators to rely on a template approach instead of designing each beginning? Is it simply a matter of “that’s how we do it here” (or in this type of case)? Or is it a choice to prioritize efficiency or…??

Feel free to weigh in!

Hat tip to Art Hinshaw who reported on this study and article on the Indisputably blog.

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