Depending upon where one mediates within the United States, the mediator either will start the mediation with a joint session or will simply start with separate sessions so that the adverse parties may, indeed, never see each other.
For some reason, using joint sessions is popular on the east coast but most folks in California prefer to use separate sessions only, following the adage that “never the twain shall meet!” (Rudyard Kipling, Barrack-room ballads, 1892.) Thus, I have conducted mediations in which over several hours, neither party ever saw the other, and even signed a settlement agreement and left the mediation without ever seeing the other.
I have always wondered if such a technique- separate sessions only- are advantageous. My rational brain (?) tells me that since the parties created the dispute, perhaps they should sit together, and talk through it or at least discuss their respective areas of disagreement. But, the parties do not seem to want to buy into this.
A recent study, although not precisely on point, seems to indicate that conducting joint sessions may have a more lasting effect. Spearheaded by Lorig Chrkoudian, Ph.D, (who designed, analyzed the data and authored the study), Community Mediation Maryland in collaboration with the Maryland Administrative Office of the Courts conducted a study entitled What Works in Child Access Mediation: Effectiveness of Various Mediation Strategies on Custody Cases and Parents’ Ability to Work Together (“What Works in Child Access Mediation – Family Court Data Report (final Sept 2014)”). (“Study”)
In the Study, the researchers used surveys and observed and coded approximately 270 mediations conducted by mediators using different approaches (e.g. directive, reflective, eliciting participant strategies and/or offering perspective (Id. at iv-vi and 30-32.)) The participants were those parents involved in family court cases disputing custody, visitation, and child access. (Id. at ii.)
While the research yielded many different interesting results, what intrigued me was the finding about the efficacy of using caucuses or separate sessions. The Study found that the more time the mediator spent in separate session or caucus, the more likely the parties to the mediation indicated that the mediator respected them and was neutral (i.e., not taking sides.). Yet, the more time that the parties spent in caucus, the more the parties had an increasing belief in a sense of hopelessness about their situation. That is, the party felt more hopeless about it afterwards than she did before the mediation commenced. And, as one might expect, the more time the parties spent in separate session, the less each party believed that he/she could work together with the other parent to resolve the conflict. Each also felt that the range of options were limited if not non-existent. (Id. at 30.) Indeed, the more time spent in caucus, the more likely the parties were to return to court to seek enforcement of any order agreed upon in mediation.
In sum, “…