Defending The Caucus: The Benefits For Parties In Facilitative Mediation

Recently the mediation caucus – meetings in private between the mediator and one side to a dispute – has come in for some harsh criticism. Dismissed as “shuttle diplomacy” that 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, the caucus has been derided as an inadequate tool for the facilitative practitioner.

The problem with the caucus – a practice commonly associated with litigated or commercial cases in which the mediator shuttles back and forth between separate rooms, conveying offers and counteroffers – is that it thwarts one of the important benefits mediation confers – the ability for those most intimately familiar with the details and history of a dispute to be directly involved in its resolution. The caucus can also shift the role of the mediator from neutral to advocate or agent for the parties. There is also the risk that the mediator – who is only human after all – may inaccurately convey information. Direct communication between the parties, from issue identification to problem-solving, can be the most productive and efficient way to reach resolution.

Yet despite these admitted shortcomings, it’s time to restore the caucus to its rightful place as a time-honored tool used “to facilitate communication between parties, to assist in identifying issues, and to promote a mutually acceptable settlement”, as lawyer and mediator Stuart M. Israel has written (PDF).

In my own experience, the caucus offers much to redeem itself and can be used, for example, to

• Encourage honest discussion and full exploration of goals, concerns, and interests
• Assess candidly the benefits, costs, or risks involved under various scenarios
• Allow parties to safely let off steam or vent without the negative fallout that might result otherwise
• Let parties digest unexpected or painful revelations in private to save face
• Mediate within the mediation, addressing differences in expectations or interests between participants on one side of a dispute or between an attorney and the attorney’s client
• Enable a mediator to regain a party’s trust in the event a mediator has inadvertently committed a misstep (even the very best mediators can err)
• Permit parties to creatively and uninhibitedly explore the full range of potential options for settlement or resolution
• Realistically weigh options on the table against the best- and worst-case alternatives to a mediated agreement
• Provide a cooling-off period for angry or highly emotional parties or give parties a break from each other in particularly stressful cases
• Create safety for one party to express concerns about threats of violence, abuse, or coercion at the hands of the other party

This last one is an important consideration for those who mediate family cases. Once, during a caucus in a divorce mediation, the wife revealed to a colleague of mine that the husband had threatened to kill her. Although this colleague conscientiously and thoroughly screens for domestic violence, these kind of unanticipated revelations can emerge despite careful intake. At that point the mediation ceased to be a mediation, and my colleague’s efforts focused on getting the woman to safety. Without this private meeting with the client, this mediation could have produced tragic results.

Like any tool, the caucus can be misused or do harm, but that is no reason to discard it. Like any tool, in the hands of the skilled craftsperson, it can also produce impressive results. Let’s restore it to its rightful place in the mediator’s toolbox.

                       

Diane J. Levin

Diane Levin, J.D., is a mediator, dispute resolution trainer, negotiation coach, writer, and lawyer based in Marblehead, Massachusetts, who has instructed people from around the world in the art of talking it out. Since 1995 she has helped clients resolve disputes involving tort, employment, business, estate, family, and real property… MORE >