Shall We Caucus – Or Not?

The rather meteoric rise in the popularity of mediation during recent decades has inspired academics and practitioners to engage in energetic discussion of the merits and demerits of various approaches to conducting effective mediations. One such debate involves whether mediation should be purely “facilitative” – with mediators limited to providing pleasant surroundings, “actively listening” to the participants, and dutifully carrying messages between sequestered opposing camps – or whether mediators should somehow share their “evaluation” of the potential risks and benefits of alternative options with the participants.

A related debate involves the relative merits of plenary (“all hands”) mediation sessions versus “caucus,” with mediators closeted with a select few of the participants at a time to privately discuss the case “confidentially” – to minimize the fear that plagues plenary sessions that one side or the other may be confessing a weakness, giving away the store, or irritating the opposition. As with adjudicative processes, plenary sessions involve all participants, face-to-face.

Unlike adjudicative processes (where ex parte communications between participants and the decision-maker(s) are generally forbidden), a mediation frequently involves extensive ex parte communication, in caucus, involving the mediator and selected participants. It is believed, with good reason, that such confidential exchanges in caucus avoids the sometimes fractious atmosphere in plenary sessions by filtering interparty communications through the mediator, to ferret out “interests” and true objectives that parties and counsel are reluctant to share directly with the opposition, and to facilitate more frank discussions of the relative risks and benefits of the various options open to the parties.

Orchestrated by the mediator, caucus can involve any number of combinations of participants chosen by the mediator. Skillfully used, caucus affords mediators a valuable opportunity both to exert their personal influence on the participants and to share their views of the relative risks of failing to settle and the benefits of a negotiated resolution, while minimizing the risk of counterproductive confrontation posed by plenary sessions.

Despite the widespread use of caucus in mediation and other forms of negotiation, some practitioners use the process only sparingly and others not at all – apparently in the belief that the energy generated (and consumed) in plenary sessions can be channeled more productively toward achieving resolution face-to-face, than by the careful, individualized management of parties, their counsel, other stakeholders (such as insurers), the issues, and the creative pursuit of solutions in the less confrontational, safer environment afforded by caucus.

Some commentators also criticize evaluative input from mediators (in caucus or otherwise) as inconsistent with the definition of mediation as “facilitated negotiation,” thus, by implication, semantically limiting the role of mediators to being “facilitators” rather than active contributors to the pursuit of resolution. According to these critics, mediation, by definition, must be purely facilitative and absolutely neutral, with mediators limited to providing a friendly environment and carrying messages between opposing parties, who remain sequestered in well separated sites, to avoid the distress of confronting their adversaries (and their problems) face-to-face.

Semantics aside, most effective mediators now actively involve themselves in seeking a just, creative and mutually satisfying resolution of the disputes they mediate and, except in the most bland forms of purely facilitative mediation, are generally actively involved in attempting to guide the parties to settlement using personal influence and persuasive skill, including a large dose of substantive case evaluation.

Moreover, research and experience make clear that most parties to mediation both seek and expect guidance and active involvement from the mediator, who they usually have chosen because the mediator is well versed in both mediation procedure and the substantive issues involved and thus expect to benefit from the opinions shared with them by the experienced neutral.

A strong argument also can be made for the proposition that a mediator has an affirmative professional obligation to do more than simply perform as a pleasant host and communications conduit, and thus should affirmatively engage the participants in reality testing, risk/benefit assessment, identification of potential unintended consequences, and the like, to facilitate informed, creative, objective decision-making by the participants in the safe and confidential setting of caucus.

This calls not only for the active involvement of the “outsider” in the design and implementation of the process, and the identification, crafting and selection of imaginative potential solutions, but also requires the application of persuasive skills in guiding the parties toward resolution, while simultaneously seeking to avoid counterproductive conduct, which can be applied and achieved more effectively in caucus than in plenary session.

Skillful mediators also use caucus to manage emotional resistance to settlement by providing frustrated participants an opportunity for “venting;” recognition and acknowledgment of the parties’ sense of injury; positive reinforcement; coaching; reflective consideration of the parties’ positions; and counseling and controlling disruptive, inept, reluctant or recalcitrant participants (any of which would likely be disastrous if conducted in plenary session). The exertion of such influences, and the avoidance or minimization of emotional barriers, can certainly be attempted during plenary sessions, but probably not nearly as effectively in most cases.

The caucus may also be used to caution participants and their counsel regarding unacceptable or simply questionable conduct without the risk of their losing face or providing their opponents with an opportunity to gloat. (A long established principle of leadership, military and otherwise, is that subordinates should never be counseled or criticized in the presence of others, especially subordinates or adversaries.)

Perhaps the most functionally important characteristic of caucus is that it permits the mediator to be more assertive, constructively critical, persuasive, energetic and evaluative than would be appropriate in a plenary session. Arguments and evaluations that might imply favoritism if aired by the mediator in plenary session, may safely be advanced in the privacy of the caucus, and various persuasive techniques that might appear unduly directive in plenary session also may be used to good effect in caucus.

Judicious resort to caucus allows the skillful mediator to take maximum advantage of that most unique aspect of mediation: the ability to resort to private discussions with carefully selected participants to enhance the search for creative and mutually beneficial resolution, and to share potentially disruptive views in an atmosphere free from many, if not all, of the confrontational pressures inherent in the abrasively adversarial atmosphere of traditional adjudicative processes and plenary sessions in mediation.

Choosing the optimum mix of caucus and plenary sessions, and if, when and how to offer evaluative input depends largely on the subjective, case-by-case (frequently on-the-spot) assessment by the mediator of numerous variables, including the nature of the dispute; the sophistication of the participants; the degree of animosity or cooperativeness displayed by the parties and counsel; any disparity in bargaining power, economic status or personality dominance among the parties and their respective counsel; the willingness of the participants to productively collaborate in the process; and the capabilities of the mediator, himself or herself.

As with tools available to any artist, it is more likely the skill of the user, rather than the characteristics of the tool, that determines the quality of the outcome.

Mediation is, after all, very much an art, not a science.

                       

Robert K. Wrede, JD, LLM

Robert K. Wrede is Of Counsel to a Los Angeles firm specializing in commercial transactions and litigation. For over three decades he has specialized in the mediation, arbitration and litigation of domestic and international commercial disputes involving complex technical and economic issues. MORE >