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Abstract: For the past decade or two, mediators, lawyers, and frequent mediation users have been debating whether the first formal mediation session should begin in joint session or separate caucuses. Although some argue that one structure generally has greater benefits than the other, many say that the best practice is tailoring the initial session to the individual case rather than using a “one-size-fits-all” approach. Analysis of the online survey responses of 1,065 civil and family mediators who mediate in state and federal court programs and private settings in eight states across the country showed that, notwithstanding this advice, most mediators begin the initial mediation session in the same way in most or all their cases. Moreover, how mediation begins in an individual case appears to be influenced more by local mediation or legal culture and norms, as well as by the general preferences of the mediator and their usual case referral source, than by the characteristics of the dispute and the disputants’ goals. By being mindful of the influence that general customs and preferences can have on the decision about whether to begin the initial mediation session in joint session or separate caucuses, mediators and mediation participants can try to make a more considered decision about the structure of the initial mediation session by taking into account the characteristics and disputant goals in the instant case.
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