The Benefits of the Joint Session 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 Hinshaw Initial 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 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, 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 $25,000 in economic loss to plaintiffs per case, and a defendant attorney error resulted in $236,000 in economic loss to defendants per case.17 Plaintiffs’ attorneys trained in mediation had 21% fewer plaintiff decision errors. Error-free cases increased from 14.5% to 21.1% when either side was represented by an attorney trained in mediation.18 The Kiser Study showed that attorneys trained in mediation have a greater ability to see the dispute from the other side’s perspective, resulting in less errors in advising their clients.

The Kiser Study demonstrates that lawyers trained in mediation more accurately predict client outcomes and save clients unnecessary litigation expense. Lawyers with mediation training are less likely to make errors in advising their clients about whether to accept a settlement offer in mediation.19

Douglas N. Frankel and James H. Stark expanded on the Kiser Study and concluded that lawyers without mediation training are prone to the influence of bias and thus “are not very good at evaluating evidence and making predictions about actual case outcomes.”20 According to Frankel and Stark, mediation training in neutrality reduces bias and provides lawyers with the ability to consider the other side’s position, which correlates to improved litigation outcome predictions and improved settlement advisement—significant benefits to their clients.21 “The most effective lawyers do, of course, bring a measure of dispassion, objectivity, and even ‘oppositional thinking’ to client representation tasks.”22 Lawyers trained in mediation are also better at appealing to the perspective of a judge or jury.23 Although the Kiser study did not directly address the use of joint sessions, lawyers trained in mediation are trained in the traditional mediation format, which includes a combination of both joint sessions and caucus. Arguably, lawyers trained in mediation should be more apt to use the joint session to their clients’ benefit.

Neuropsychological Research

Mediators have expertise in the mediation process, and to be successful, they must create a safe space for participants to work through initial emotional responses caused by facing adversaries. By doing this, they can help the parties participate in joint problem-solving. “The mediator creates a safety zone for the disputants, a demilitarized zone where the signposts have been changed, where it is safe to meet [face-to-face], safe to identify conflict, safe to negotiate, and even safe to reach a settlement.”24

From a neurobiological perspective, a distinctive feature of mediation is that parties in mediation experience both fear and safety at the same time. The sympathetic nervous system, the branch of the nervous system that produces the fight-or-flight response, is aroused as parties confront and negotiate with their adversaries. Yet, at the same time, the parasympathetic nervous system—which produces soothing and calming effects—is activated through the process of social engagement and communication.

Ideally, as parties’ fighting and self-protective impulses are managed and controlled, they become able to think more clearly, and as a result, are more likely to reach a realistic resolution. This is the magic of mediation.25

Mediators help participants and counsel reassess exaggerated and inflated positions, view the dispute from a different perspective, and explore underlying interests that may lead to settlement. The process is called the “inflation, deflation, realistic solution” cycle (IDR cycle).26 Through this process, the parties experience empathy development that often requires understanding facial visual cues that have been neuropsychologically embedded throughout our evolutionary development.27 Neuropsychological research has shown that one’s face is a key element in the brain­-face-heart circuitry. Mirror neurons of the face are used to develop empathy, language, and self-awareness.28 The face is central to shifting from a fight-or-flight state to a socially engaged state. The face is central to shifting mediation participants through the IDR cycle, from being driven by fear to being driven by logic, and from fighting to problem solving.29

“[W]hen ‘face’ is lost—that is, when the vagal brake is lifted—conflict physiology dominates.”30 Neuroscience has revealed that in conflict “the brain path to resolution needs a staged de-escalation sequence that includes constructive conversation among the disputants.”31 The ability to persuade and analyze is reduced without the face-to-face conversations and the additional understanding that comes from a joint session.32 “More face-to-face contact in dispute resolution might offer the opportunity to demonstrate sincerity in an emotionally convincing manner. It may also offer the opportunity to assess credibility of the party opponents or lawyers.”33 Why, then, do family law attorneys often forgo the joint session? Below we examine why joint sessions are less favored.

Reasons for the Demise of the Joint Session

Reasons why fewer family law mediations involve joint sessions range from consumer-driven economic influences to a lawyer’s lack of knowledge about the mediation process. In some cases, the risks outweigh the potential benefits, such as in cases where domestic violence or control are at issue. But such cases should be the exception, not the rule.34 Often, the reasons revolve around a lack of knowledge of the benefits of mediation and resistance to letting go of the litigation mindset, especially when mediation is court-ordered and attorneys are involved.35 “[Lawyers] often treat mediation with the same formality as arbitration, submitting positional briefs based on the law. Frequently, they focus more attention on their positions than on the interests of their client or of their opponent’s.”36

Mediation is a private process, and mediators are essentially unregulated professionals. “Mediators today operate with few market restrictions, few controls on their conduct, and few consequences for misbehavior.”37 Therefore, market forces may influence mediators more than other professionals, such as psychologists, doctors, or lawyers, who are subject to both front-end licensure requirements and back-end regulatory scrutiny.38 Mediators are ethically bound to ensure a quality process, but nothing specifies what that process should look like.39

[C]onsumers of the mediation process, who are indeed stewards of the outcome, must respect the professional mediator’s expertise and knowledge of the power of the process. Capitulation by mediators to unsophisticated and untrained users who wish to skip the joint session will result in a dangerous erosion of mediation and further incursions into the mediator’s role.40

The empirical evidence regarding mediation best practices indicates that the joint session results in less future litigation over mediated agreements, yet mediators are using more shuttle diplomacy and fewer joint sessions. In a 2016 survey conducted on the nationwide JAMS panel of mediators, 80.34% started their practices using the joint session at the beginning of every mediation, but at the time of the survey, those same mediators used the joint session in only 45.1% of cases.41 For 41.09% of those surveyed, attorney and party preference was the primary reason for the decrease in the use of the joint session. The survey observes, “The preference of attorneys is a primary consideration in deciding whether to have a joint session, and comments indicate mediator sensitivity to lawyer resistance.”42 The JAMS survey comments also emphasize a general consensus that joint sessions are important in family-related matters.43 Attorney preference in avoiding the joint session may be influenced by providing information about the benefits of the joint session.

The Benefits of the Joint Session

Findings from selected empirical research of the joint session may help participants and counsel see how the protected joint session environment can allow them to explore oppositional thinking. That could result in better client outcomes and less attorney error in settlement advisement. The joint session also promotes participant self-determination and problem-solving behaviors, allowing the participants to control the outcome and overcome conflict, a distinguishing characteristic of mediation.44

Below are some key benefits of the joint session.45 This list may assist practitioners in counseling their clients on the benefits of joint sessions. It can also be a conversation starter when discussing with clients reasons to try using the joint session in mediation.

The statutory definition of mediation in the Colorado Dispute Resolution Act (CDRA) requires party participation: “Mediation” means “an intervention in dispute negotiations by a trained neutral third party with the purpose of assisting the parties to reach their own solution.”46 Therefore, when preparing clients for mediation, lawyers “should envision and require party participation. Lawyer-mediators talking to lawyers or former-judge-mediators talking to lawyers is not party participation.”47

The CDRA distinguishes the mediation process from a settlement conference, which is often portrayed as mediation. It may be a good idea to counsel clients in advance on what they may encounter in these so-called “mediations.” A “settlement conference” is an informal assessment and negotiation session conducted by a legal professional who hears both sides of the case and may advise the parties on the law and precedent relating to the dispute and suggest a settlement.48

Lawyers are ethically bound to communicate with their clients regarding the “means by which the client’s objectives are to be accomplished” and to provide competent representation and the required proficiency to represent clients in mediation.49 Lawyers are ethically required to adequately counsel clients about the types of dispute resolution processes available to them. Every family law lawyer’s mediation preparation plan should include an individualized case analysis to assess whether clients may benefit from the joint session.

Conclusion

Mediators are often met with resistance to the joint session in family law sessions when parties are represented by counsel. Attorneys may be concerned about their clients’ emotional state and discomfort with seeing the other party. Yet neurobiological research shows that a fight-or-flight response during conflict is a natural part of the “inflation, deflation, realistic solution” cycle, and conversation between the parties can de-escalate the conflict and open the door to problem solving. A growing body of research indicates that keeping the parties apart during mediation negatively affects long-term resolution of the conflict. This frustrates the overarching policy goal of lessening the strain on the court system and encouraging families to resolve their own disputes when possible. Defaulting to a shuttle mediation without a thorough assessment of the benefits and detriments of the joint session should no longer be considered a best practice.