“Why did you keep the parties together?”
In the mediation of a dispute over the common ownership of real property held for many years by several elderly siblings, an extended joint session recently took place among the siblings, their family members, their attorneys and the mediator (me). Beginning in the morning and for at least two hours thereafter in one large conference room, the group of 13 discussed the issues before them. When the catered lunch arrived, the group recessed for a half hour but continued in the same room and ate together. The joint session then resumed for another period.
During lunch, one of the attorneys asked me, “Why have you kept the parties together?”
Before answering I asked the attorney if she had ever participated in a mediation with a joint session such as this before? She answered that she had not; everyone is always split up into separate conference rooms.
Again, before answering, I observed that the model for mediation in our legal community is definitely not to keep the parties together, perhaps because togetherness is perceived as too risky. And, I observed that, in another kind of case, maybe a commercial breach of lease dispute, where it’s really mostly “just about the money,” we would definitely split up at some point for the negotiation … and that we may still do so for one or more issues today if we must. But not yet.
To answer the question more directly, I observed that, here, it was not only about the property (or the money from it) at issue, but also the family’s interpersonal relationships at stake. Perhaps the family was having some difficulties, but it is still a family.
I also referred to the transformative mediation approach about which I had recently read in Bush and Folger’s The Promise of Mediation, where the goal is to transform the conflict interaction itself. In that model, as I have written before, the parties in conflict stay together the whole time (which might be a bit much for this group) and decide for themselves what to discuss, when and how. They also decide the outcome for themselves, choosing whether or not they want to resolve the matter, with the mediator staying in the background, checking in from time to time, helping the parties to clarify their messages and goals.
To the attorneys’ amazement, the joint session we were having, had already produced, and after lunch continued to produce, understanding and family consensus for nearly every issue, with the attorneys and mediator guiding the discussion every once and awhile.
Finally, for one thorny monetary issue, the group did divide into two groups at the suggestion of the mediator. The usual back and forth occurred thereafter, and agreement was reached on that last issue, in recognition of all that had been accomplished jointly and for the benefit of the whole.
To everyone’s delight, the day worked out very well. Soon, the lawyers had drafted the settlement agreement, the parties signed, and it was over. Not only was everyone pleased with the financial outcome (although perhaps surprised at how we got there), but the group was satisfied, too, that some of the family strife had dissipated as well.
That’s why we stayed together in one room for so long.