From the blog of Nancy Hudgins
I’m going to suggest that you could be missing the boat by caucusing. We could start the laundry posts I’ve recently completed on persuasion:
It’s very difficult to use these persuasive negotiation skills to your client’s advantage when you are sitting in a room with your client and not sitting in a room with the other side. Not to mention the fact that you’ve ceded most of your power to the mediator, who is conducting the shuttle diplomacy. (Admit it. Don’t you cringe a little bit for the legal profession when you see a lawyer for the other side sitting reading a newspaper during the caucus phase of a mediation? Wouldn’t you at least want to keep your head in the game?)
In addition to not using the skills above, you and your client are missing out on a crucial part of any negotiation: information gathering. When the other side is doing the talking, you can look for and listen for nonverbal clues and verbal leaks. Mediators rarely leak like the other side because they are neutral and not emotionally attached to the information.
The challenge is in the joint session. Hone your persuasion and negotiation skills and rise to the challenge. Try staying in the joint session as long as possible. Impress your client by your skill at negotiation, not your small talk in caucus while the mediator is talking to the other side.
At the moment, practitioners have relied on traditional ADR standards and guidance to consider the ethical concerns involved with using ODR, even though they are less than ideal when applied...By Julian Granka Ferguson