Is the joint opening mediation session dead, and, if so, should we mourn or celebrate its demise?

Tue, May 19th, 2026 | by Miles Mediation and Arbitration | Article | Social Share

By Leigh Wilco

When I started mediating more than a dozen years ago, it was simply assumed that the mediation would begin with a joint session. The parties would meet and the lawyers, and sometimes the parties, would present a summary of the facts of the dispute and their positions as to why they would prevail at trial. We then broke into individual caucuses.

Gradually, however, this began to change. Often the parties wanted to dispense with the joint session and move straight to individual caucuses, never seeing or speaking directly with the opposing party or lawyer.

Today, skipping the joint opening session has become the norm. The question then becomes: is that a good thing or a missed opportunity? There are arguments for and against the joint session; a better understanding of the joint session’s purpose and potential impact can help you determine if your case would benefit from one at mediation.

The Case for a Joint Session

There certainly are times when a joint opening can be beneficial for one or both parties:

• If the litigation is in the early stages and not a lot of discovery has been exchanged, a joint session can give you the opportunity to learn more about your opponent’s case and to educate the other side about your case.
• The joint session can also be the first time that the party or adjuster making the decisions gets to see the other party in person and can evaluate his/her potential to influence a jury, and the impact the person may have on the jury.
• If you are not convinced that your opponent has given unfiltered information to his/her client, this is an opportunity for you to speak directly to the client (but don’t count on the person listening and believing every word you say).
• In the appropriate case, the opening session gives you and your client the opportunity to make a sincere apology, potentially defuse a tense situation, and take some of the hostility out of the negotiations.
• The opening session is an opportunity to show the other side that you are prepared and serious about the mediation and ready to go to trial if the case is not resolved.

The Case Against a Joint Session

Of course, there are some compelling reasons to skip an opening session:

• If the parties have a lot of animosity to each other and/or opposing counsel, having them in the same room at the opening session can be counterproductive.
• In a case that has been going on for a while, with discovery completed, and motions filed, both sides likely know the other’s positions. In that case, a joint session can be seen as being unnecessary or, worse, a waste of time.
• In cases in which the lawyers know their clients and feel that a joint session would make them uncomfortable or feel like they are “on display,” avoiding the joint session may facilitate the mediation and make the client(s) feel more relaxed and open to negotiation.
• If a lawyer is particularly aggressive or tends to showboat, a joint session can waylay the mediation before it even gets started.
• If you are not as prepared as you might like to be (for example, against your advice, your client did not want to spend the money on prep time and isn’t well-prepared) and/or your client will not present well, avoiding the joint session might aid your settlement position.

Deciding on Whether to Have a Joint Session

The bottom line is that the parties should evaluate the issues in their case and decide if a joint session will add value to the mediation.

If one party wants a joint session and the other is ambivalent, as a mediator, I encourage a short joint session. If one wants it and the other is adamantly opposed, I try to see if there is some middle ground and find out why they have different views on the joint session. One compromise is to let me start each individual caucus by conveying the other party’s position to each party.

As you can see, there are pros and cons to having a joint session. As a mediator, it’s not my decision to make — it’s the parties’ mediation and they, not I, must make the decision as to what is best for their clients, and for their particular case. A careful consideration of the impact (both positive and negative) that a joint session may have should be part of every attorney’s preparation for mediation.

*Originally published in the Daily Report and reprinted with permission.

About Leigh Wilco

Leigh Wilco has been mediating cases for more than 15 years, settling more than 80 percent of them. He has extensive experience both as a litigator and a neutral in business/commercial, construction, employment, premises liability, and real estate disputes. Leigh has also litigated and mediated numerous automobile/trucking, contract, insurance, personal injury, products liability, professional negligence, and wrongful death cases.

In addition to his mediation practice, he arbitrates real estate and commercial disputes. Leigh has been appointed by the courts as a special master and as a receiver.