Separate Sessions in Mediation
Joint mediation sessions offer opponents a chance to vent, converse, and negotiate through or at least in the presence of a third party, a meidator. However, there are times when it is advantageous to the process to meet with each party separately. Discussions may have grown overly emotional, off focus, argumentative, counterproductive. A party may need a break. A mediator may try and recalibrate where a party is going and trying to do that in joint session may have adverse results. For example a child custody mediation may seemingly be proceeding down lines which seem to indicate agreement will be reached on a parenting plan. All of a sudden one party voices a past incident which raises the hackles of the other party and an argument starts. Focus on the parenting plan is quickly being lost. One approach is, let’s take a time out and go into separate session. In the separate session our mediator finds out a reason this outburst occurred was because the incident took place on the holiday which was about to be discussed in the visitation plan. A mediator then has a chance to figure out how to allow the parties to deal with the hurt involved with this holiday as it pertains to the visitation plan. Or, in a contract dispute a party may be withholding information from the discussion because thy do not want the other party to know. However this information is critical for the mediator to understand in order to fill what looks like a big gap or a total disconnect. For example when a party is facing a money demand they may wish to pay but they may not wish to disclose they are facing bankruptcy and so need the mediator to understand why additional time is necessary. In addition a party can ask the mediator to keep the information disclosed confidential from the other party.
Are separate sessions subject to manipulation or abuse? Can a mediator be played in favor of a party through a separate session? Maybe a little more than in a joint session however, it is dependent on a mediators experience and skills in discerning when manipulation or abuse is taking place. If it is manipulation or abuse a mediator has a right to call it out and if this does not work then to consider withdrawing from a case. It is especially true when power imbalances are occurring. A mediator also has to watch out for feigns from a party about just how wonderful they are (as long as they let themselves be influenced by a party).
Separate sessions can play important, even critical, roles in resolution but there are mediators who will not go into separate sessions as their process, feeling rather, that all discussions should take place in joint session. I utilize separate sessions, taking into account the potential downside noted above and the use by one party to hold the other in suspense for long periods of time as part of the wearing down process in a negotiation.
