After a joint session, a skilled mediator may ask to have
private caucuses or meetings with each party and their counsel to
further explore their position and flexibility for settlement.
These private caucuses, like the full mediation process, are
confidential; as such, the parties often find it easier and more
appropriate to discuss certain issues or their willingness to show
flexibility.
The mediation caucus has been the recent target of some harsh
criticism. Detractors dismiss it as simple shuttling back and forth
by the neutral, which keeps parties in the dark about each other's
interests and places full control over the flow of information in
the hands of the mediator. It is argued that with the absence of
the opposing party, it's easier for one side to exaggerate or
manipulate the mediator. Sometimes one party fears that the other
party has somehow co-opted the neutral in the other party's favor
and that the mediator is no longer unbiased when they come back
into the room.
The caucus can also shift the role of the mediator from neutral
to primary advocate or agent for the parties, both hearing and
making the essential arguments. There also exists a risk that the
mediator may inaccurately convey information, or do so out of
context. There is, as well, the argument that a mediator has too
much power to influence the process and outcome when they are the
only person who has seen how the parties and their lawyers are
feeling and acting.
Some even argue that caucusing generally results in but a series
of shuttled offers rather than the processing and exchange of
views, and subsequent change of perception and awareness, that are
the essence of many successful mediations.
To others, the key problem with the private caucus is that it
thwarts a fundamental mediation benefit: the opportunity for those
most intimately familiar with the details and history of a dispute
to be directly involved in its resolution. Indeed, from issue
identification to problem solving, direct communication between the
parties is often the most productive and efficient way to advance
toward resolution.
Perhaps the most significant apprehension associated with
caucusing is the potential for mediator violation of
confidentiality, either inadvertent or purposeful. A mediator needs
to be unconditionally vigilant not to reveal confidential
information. In fact, it's strategically valuable that the mediator
explain to the parties at the outset that they will not divulge
what is said in caucus without that party's consent.
Notwithstanding these criticisms, private caucusing is an
extremely useful tool in the mediator's arsenal, allowing the
neutral to learn more about the elements of the dispute and more
about the parties themselves and their fundamental needs and
interests. Caucusing can lessen tensions by providing parties the
space to vent and to feel understood while speaking in private to
the mediator. Caucuses provide the opportunity to create an
effective client-mediator bond. When the mediator is demonstrably
neutral, credibility is established and any concerns about an abuse
of process are greatly reduced. It is powerful for the parties to
make their views known clearly, and to feel the mediator
understands their perspectives.
Caucusing provides an opportunity for a mediator to help clients
process the messages sent by the other party, to give parties care
and attention, and to promote resolution of issues individually
with each of the parties.
The viability of private caucusing depends, quite often, on the
type of case and the parties' goals. For example, in divorce and
custody disputes, where the parties will be dealing with each other
long after the mediation has concluded, face-to-face negotiations
oftentimes seem best suited toward achieving resolution.
In civil case mediations, caucusing is a more integral and
helpful feature of the mediation process. The parties more often
than not will have nothing or little to do with each other
post-session, thus, the burden that caucusing could pose to any
future relationship is less commonly an issue. Particularly in
civil cases when money or settlement value is the key concern, the
parties will come to the mediation with their lawyers,
understanding that in their situation a strong caucusing element
with features of shuttle diplomacy by the mediator is generally
very effective.
Whatever the reason for caucusing, there are a few things good
mediators establish if they are going to use this technique. Upon
commencement, experienced mediators will explain what private
caucuses are, their confidential nature, and that they may be held
at some time during the mediation. The parties should be aware of
how caucuses can help, and that either the parties or the mediator
may request a caucus.
Confidentiality is a principal element that mediators must
consider before they employ caucuses. Although a caucus may involve
confidential information, it's not about telling secrets or about
excluding individuals, and it is assuredly not about leveraging
position based on confidential information. Rather, these private
discussions should be kept privileged by the mediator, and only
those proposals that a party specifically authorizes a mediator to
share with the opposing party should then be divulged. The mediator
can be proactive and ask for permission to share information and
proposals they believe will move the mediation forward.
Many mediators chose a process whereby everything said in the
caucus may be shared except what the participant wants kept
confidential. The other option is to explain that everything said
in the caucus will be kept confidential except things specifically
identified by the participant that may be shared. The former
process permits the neutral to utilize their skills and experience
to determine what, if anything, should be shared or held back when
working with the opposing parties in order to best facilitate the
process to the benefit of all involved.
Time is a major consideration in managing caucus sessions.
Managing time so that the opposing party is not left alone for too
long is typically advantageous. The party not in caucus may be left
feeling worried or stranded, particularly after the momentum
generated from the initial joint session. Before breaking into
caucus sessions, it helps to reassure the parties that the length
of time in these private meetings may be different with each party
and is not entirely predictable.
The key value of the caucus session is that parties can talk
frankly and freely about the dispute, compared with the more
guarded expressions experienced when meeting jointly. The private
and confidential nature of the caucus tends to decrease anxieties,
allowing the parties to share case strengths and weaknesses, their
view of the opposition's case, and their underlying interests, as
well as allow for suggestion of new ideas for solutions.
A mediator can ask questions in confidence that a party might
not want to answer in a joint session. A skilled mediator,
particularly in private sessions, is likely to discuss with each
party the realities and alternatives facing them if, for example,
they decide to go to trial. Most parties appreciate candid
discussion regarding their chances of a verdict in their favor,
information on a likely decision or award, an estimate of time it
could take to get to trial, and how much it might cost financially
and emotionally to go through a trial. In private caucuses, the
mediator can also offer negotiating advice and work to develop
settlement proposals.
Some parties may be resistant to hearing such realistic
messages, even from their own attorneys; they may have overly
optimistic assessments of what a trial may result in should they
decide not to accept settlement. The mediator can be quite
effective, as an impartial and experienced neutral, in dealing with
unwarranted optimism.
Sometimes the relationship between the parties has become
problematic. A caucus can be called to allow parties to vent
intense, built-up emotions without aggravating the other party.
Caucuses are frequently helpful in clarifying misperceptions. These
private meetings are essential when used to address unproductive or
negative behavior, and to limit destructive communications between
the parties.
Mediators orchestrate the use of caucuses to fit the nature of
the case involved and toward the particular needs and interests of
the parties. A private, confidential caucus is a valuable tool
which can produce impressive results. Utilizing this procedure, the
parties have an opportunity to openly discuss their needs and
interests, compared with less optimal information gleaned during
joint sessions where guarded expressions of information are often
invoked because the other party is present. Private caucuses put
the parties at ease, allowing uninhibited discussions and realistic
consideration of the strengths and weaknesses of their case as well
as that of their opponents. Private caucuses allow the parties to
thoughtfully work with their mediator to reach productive solutions
and resolve even the most challenging matters.
Brian R. Jerome, Esq., is founder and CEO of
Massachusetts Dispute Resolution Services, one of the first
full-service DR firms established in Massachusetts. Jerome has
served exclusively as a neutral for 26 years on a remarkably
extensive array of subject matter in over 12,000 cases. He is the
chair of the MBA's Dispute Resolution Section.