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Abstract: Many of the traditional components of initial joint sessions occur less frequently today than they did historically and are more likely to take place during initial caucuses than during initial joint sessions. These changes in mediation practice lead to questions about whether initial joint sessions still provide the benefits historically attributed to them and whether initial caucuses now provide not only the benefits specifically ascribed to them but also the benefits typically associated with initial joint sessions. The present Article addresses these questions while taking into consideration differences in case and mediator characteristics as well as the extent of discussions in each setting. The findings are based on the survey responses of over 1,000 mediators in general civil and family cases across eight states.
There were differences between cases that began mediation in joint session versus in caucus in several intermediate outcomes associated with the initial session, especially in civil cases, but few differences in final outcomes between cases where the disputants spent some versus no time together during the entire mediation. However, for the most part the differences disappeared or were reduced after we statistically adjusted for the extent of substantive discussions among the mediator, the disputants, and the lawyers as well as several case and mediator characteristics. Thus, the outcome differences largely appear to be explained by differences in the extent of discussions that occur during the initial mediation session as well as differences in case characteristics rather than simply by whether the disputants are together or apart during the mediation. The findings do not support some common assertions about the relative benefits of initial joint sessions and initial caucuses or the benefits of the parties being together for some time during the mediation, but they do provide evidence for the informational and relational benefits of mediation more generally.
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