Caucus: An Aid in Mediation

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The origin of the word caucus is unclear however an early reference dates back to February 1763 when John Adams of Braintree, Massachusetts, second president and first vice president of the United States, used the word in his diary. In the United States you find that caucus is mostly associated with events in the political arena where supporters or members of a political party or movement are meeting to discuss issues and make decisions. The caucus however has been expanded to include its use in the field of Alternative Dispute Resolution, specifically mediation.

“THE BEAUTY OF MEDIATION IS ITS FLEXIBILITY; THE BANE OF MEDIATION IS ITS FLEXIBILITY”. What I mean to say is the mediation process can attend to such a wide variety of issues and disputes, so I am pleased to say that disputing parties are not just pigeon-holed into one method of dispute resolution, for example litigation. Yet, at the same time this flexibility allows us to conduct our sessions, within certain limitations, any way we think is best. We can be non-directive, directive, have a therapeutic or a bottom-line approach. However I think having an eclectic approach, where we adjust our style to the needs of the parties is best for them, for your business, and for the process. Certainly we can observe using a variety of methods for how we implement the process, as they differ from mediator to mediator can be confusing for the public-at-large.

The Caucus is generally considered a part of the mediation process as a private, confidential meeting of members of one side of a dispute, often with the mediator, to discuss options with the intent to find a resolution. This meeting is separate and distinct from the joint session. The parties can meet in caucus without the mediator and consult in private with their advisor.

The concept of the caucus in mediation was developed to give the disputing parties an opportunity to take some time away from the joint session so they might confer with their advisor and/or the mediator in the effort to clarify the issues, reflect on long-term and short-term goals, review options and proposals, gain new facts, develop new agreement/settlement offers, allow for emotional venting, and confirm decisions. Calling a caucus can be useful for both the experienced and new mediator.

A disputing party, their advisor, or the mediator can call for a caucus. It is a useful tool, an aid if you will, in the mediation process as outlined below. However, given the private nature of such a meeting it can result in distrust of the mediator, the other party, and the process by anyone involved in the session. Some mediators and some mediation sessions do not call for a caucus at any time during a session. It may not be warranted by the disputing parties for the issues brought to the mediation table. The mediator should always have a clear idea of why he or she is calling for a caucus and explain their rationale to the parties prior to going into caucus.

There are some specifics considerations the mediator must attend to regarding the use of caucus. They are as follows:

·     Educate and inform the parties about the technique, including a reiteration of confidentiality

·     Overcome resistance of the parties to private (separate) meetings

·     Make the transition to the caucus easy for the parties

·     Decide which party to caucus with first

·     Determine the duration of the caucus and allot equal time for all parties

·     Determine what is to be said in caucus

·     Make the transition back to the joint session easy for the parties

 

In addition, there are elements of the caucus you will want to review as they are listed below:

     I.         PURPOSE and USE

a.   when parties are uncomfortable exploring options in front of each other

b.   when suggesting option with a contending party present may be perceived as rushing a premature commitment

c.    when a party needs privacy to figure out what options he or she want to explore in joint session

d.   when mutual option generation may reveal information that a party wants to remain confidential

e.    when the mediator needs to clarify or explore statements made by either party

   II.         LOCATION

a.   must be a private area

b.   near mediation room but does allow for both visual and auditory privacy

c.    parties must be physically separated

III.         CONFIDENTIALITY

a.   all conversations between mediator and disputants are held under the same strict rules of confidentiality unless specified otherwise

b.   same limits to confidentiality apply in caucus

c.    mediators can get a party’s permission to share what was discussed, or any portion, with the other party

d.   a mediator may claim an idea brought out in caucus as their own in the effort to assist the parties toward agreement/settlement, however this must be done carefully

e.    a mediator can/should ask if there was anything discussed during the caucus that the party would not want to be disclosed

IV.         ETHICS

a.   mediators must remain neutral and impartial

b.   mediators must not manipulate the confidential information gained solely to reach an agreement or settlement

c.    confidentiality and the limits of same should be disclosed again during the beginning of a caucus

d.   prior relationships and associations with any of the disputing parties with the mediator should be disclosed either prior to the implementation of the session or during the introduction; the parties can decide whether or not to continue with the process

   V.         TIMING

a.   caucus can be held early, middle, or near the end of a session

b.   early caucus usually addresses procedures (e.g. interruptions), identifying issues, and/or venting of emotions

c.    middle caucus usually tends to identifying wants/needs, avoiding premature commitment to a position, generating options, and testing of flexibility to negotiate

d.   end caucus are used to break deadlocks, assess proposals, clarify agreement/settlement conditions, and/or allow disputants to calm themselves

VI.         EMOTIONAL VENTING

a.   usually done in caucus once the disputants begin negative venting in joint session

b.   best done in caucus when emotions have the potential to destroy the negotiation process, when they are manipulative, and when safety of the parties may be an issue

c.    allows for a physiological release of energy as a result of pent up emotions

d.   a mediator can call a caucus specifically to give the disputing parties an opportunity to release emotions

e.    can aid the parties to focus on the issues, problem-solving, relationship building, and the terms for an agreement/settlement once they return to the joint session

VII.         MANIPULATION/CONTROL

a.  the opportunity for control, manipulation, suppression, enhancement, and/or the introduction of new information can lead to ethical issues for the mediator

b. mediators remain as “guardians of the process” within the caucus and only to that extent should they attempt to influence the direction of the caucus

c.  mediators are responsible to ensure the safety of all the parties in caucus

VIII.         NONVERBAL COMMUNICATION

a.  mediators must remain aware of any nonverbal messages conveyed by both the disputing parties and the mediator within the caucus

b. by calling a caucus a mediator can eliminate or reduce the use of nonverbal messages during the joint session by either disputing parties resulting from the separation

c.  mediators can project nonverbal messages of calmness, rationality, focus, professionalism, and seriousness through the nonverbal messages they convey to the disputing parties in the caucus

d.  lack of understanding and knowledge of culturally based nonverbal communications can lead to a breakdown of communication between the mediator and the parties in caucus

The use of a caucus is routine for mediation sessions and a typical procedure to follow would be to include a description of it and when/who can call a caucus in the introduction of mediation at the beginning of a session. Addressing any questions about the caucus can should be answered at this time.

During the session, once a caucus has been called the mediator should review confidentiality and its limits again for the parties. The parties should be separated into private rooms or areas. After the issues have been discussed and an appropriate course of action has been decided, at the conclusion of the caucus the mediator should ask if there was any information that cannot be shared with the other party not in the room at the time of the caucus. As long as the information falls under the Standards for Good Mediation Conduct it will be kept confidential. If the information is relevant the mediator will then discuss with the disputing party whether or not they can/should continue with the session. Again, the key concept to keep very much in mind is the Standards for Good Conduct. The Standards speak to our ethical behavior as professionals and ensuring that the parties have the clear opportunity to agree/settle on the issues as represented in a truthful manner.

It is important to remember that even if one of the parties called the caucus and meeting outside of the mediation room, the mediator and the other party are also in caucus and are bound by confidentiality. In addition, one must be aware of any safety issues when going into caucus, that either or both parties may not trust what is being said or done during this part of the mediation process, that ensuring each party has equal time with the mediator in caucus is important to allaying potential trust issues, and that a caucus should remain focused on the issue(s) at hand and its duration not be for longer than necessary. One last point I think needs to be made about the timing of when to call a caucus. Some mediators will call a caucus at the first sign of dispute or negative emotionally between the parties. This may be unwarranted as the parties are in dispute and the need to voice their concerns under the protection of confidentiality, within the mediation room, allows for the parties to “tell their story”. Also, the mediator can gain valuable information from the manner in which the parties interact while in distress. It is hoped that while hearing what is said and observing this type of interaction between them the mediator can gain insight into facilitating a decision leading to an agreement or settlement that benefits both parties.