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, “…

[i]t appears that while caucusing increases faith in the mediator, it decreases faith and problem-solving potential with the other participant.” (Id. at 30.)  And… it seems that the amount of time spent in caucus “… had no impact (positive or negative) on reaching an agreement or consent order.” (Id.)

While this Study focuses on family court matters filed in Anne Arundel County, Baltimore County and Charles County, Maryland (i.e., on the other side of the country!), I believe its findings on the value of caucus are not so limiting. I am a firm believer that most disputes result from either a failure to communicate, a lack of communication or a miscommunication (the listener heard something different than what the speaker said or intended).The best way to resolve this communication error is directly- by having folks sit down together to discuss the issue and where “it” all went wrong. To use an intermediary (e.g. a mediator) is like playing the game of telephone in which a message is passed along several people and by the time it reaches the last person it bears no relation to what the originator said!  While, as mediators, we do, indeed, strive our utmost to not mis- convey or misstate a message, the way in which we deliver the message- our tone, cadence, inflection, facial expressions and cues, and body language, will not be the same as the originator’s. (Sometimes, this may be to the good!)  No matter how hard a mediator works against it, the implicit, and very subtle if not unconscious aspects of the message will be lost in the translation.

This Study bears out my intuition;  in most ( although perhaps not in all) situations, joint sessions are more valuable and will create more durable and long lasting agreements. There is a difference between putting a Band-Aid on a problem by reaching a settlement and finding peace by truly resolving the dispute. While separate sessions may work in the former, I believe that in most situations only a joint session will work in the latter!

…. Just something to think about.



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