Whether parties to litigation should engage in joint session bargaining at some point in the process is a hot topic at the moment because joint session practice is nearly a dead letter in one of the most active and sophisticated mediation markets - Los Angeles California. 

Most attorneys do not like to begin their mediated negotiations with a joint session and neither do many mediators.  The reason most often given is everyone's desire to avoid a polarizing set of zealously adversarial presentations.  The joint session, however, was never meant to be a mini-trial or reiteration of the parties' adversarial positions - positions with which they've been living, and defending their clients against, for weeks, months, years, even decades.  The joint session was supposed to give the parties with the dispute  -- the clients -- the opportunity to brainstorm mutually acceptable solutions to their undeniably mutual problem - the sink hole of litigation. 

The news for separate caucus mediators is that avoiding joint sessions may deprive us of the  "small talk" necessary to put the parties into a collaborative, even generous mood.  

First the Neuroscience  (from the Neuromarketing Blog) 

Recent research confirms that the miserly not only spend more time thinking about money than their more generous peers, they are also more socially withdrawn.  Although Dickens nailed the personality type on the head  when he created the friendless and miserly Scrooge, it seems that all of us are anti-social and penny-pinching when focusing primarily upon money. 

The confirming research?  Recruiting the usual cadre of beleaguered undergraduates, scientists at the University of Minnesota found that when students have their minds on money, they tend to be both selfish and withdrawn.  Those who were "primed" by money imagery before being asked to engage in (or imagine) solitary, group or "helping" activities  

waited nearly 70% longer to seek help than those who[se attention was not directed to money]; spent only half as much time . . . assisting []other[s] . . . [and] preferred working alone even if sharing the task with a co-worker resulted in substantially less work. 

The young people whose attention was focused on money also  

chose solitary leisure activities . . . preferring a private cooking lesson, for instance, over a dinner for four [and] when asked to set up two chairs for a get-to-know-you chat with another volunteer, . . . placed the chairs further apart than subjects [whose attention had been directed to non-monetary themes].

These findings, concluded the researchers, suggest that thinking of money puts people in a frame of mind in which they don’t want to depend on others and don’t want others to depend on them.  (see Thinking About Money from Neuromarketing here).  

The Benefit of Small Talk and Joint Sessions

What benefits can litigants draw from these research findings?  The same benefits most successful negotiators already derive from small talk -- breaking impasse and closing the deal. 

In the not so distant past when I was primarily mediating pro bono cases for the Superior Court, I always commenced my mediations in joint session.  I did not ask for those polarizing speeches about the merits of each side's case however.  What I asked both the parties and the lawyers to do was very simple.

"Introduce yourself," I said, "as if you were at a cocktail party.  Say something interesting about yourself, something pleasing or, at least, something superficially revealing, such as your job, a recent vacation you've taken, and the like."  

Expect the Unexpected  

In one small commercial dispute early in my pro bono career, that initial "party chatter" resolved the case in short order.  The Plaintiff businessman was the first to introduce himself as an importer of household goods from Yugoslavia.  After five or six other parties had gone through their introductions, it came time for defense counsel to say a few words.  He opened his arms and broke into a grin as he began to speak to Plaintiff in Plaintiff's native language. 

Plaintiff's counsel looked justifiably alarmed -- after all -- his client was speaking to opposing counsel outside of his "hearing."  As he moved to intervene, however, I tilted my head a bit and mouthed "I think it's a good thing."  We both relaxed, leaned back in our chairs and watched the two carry on an animated and increasingly friendly conversation.  We were done and the parties were unusually happy with their settlement a brief twenty minutes later. 

I've seen small talk settle cases of much greater magnitude and after long, difficult negotiating sessions, particularly when the principals meet alone, often for the first time.  In one particularly contentious trademark action, I refused to let the parties leave before the two businessmen sat in a room together in the absence of counsel or mediator in a final attempt to work things out.    

They emerged fifteen minutes later, not only laughing, but puffed up with pride that they'd so quickly done that which their attorneys had been unable to do -- settle a case that didn't make any sense to try.  When I asked the parties what they'd said to each other, they replied, "baseball, basketball, football.  Then we settled." 

The Perils of Shuttle-Negotiation

Here, then, is the weakness of shuttle negotiation.  The parties' attention is fixated on money.  A fixation that neuroscientists tell us makes us ungenerous and anti-social -- the worst possible context for a successful settlement.

The next time you're facing a difficult negotiation or mediation, remember the salutary effect of small talk in helping yourself and your opponent focus on the commercial and human situation that has brought you to the table so that you can more easily resolve the business and the people problem at the heart of the litigation.