When parties have difficulty discussing the issues with the other party in the room, the mediator may decide to move to caucus mediation. Caucuses can be a powerful tool in mediation, but some downsides need to be considered when considering a caucus. The mediator’s style will also impact when caucuses are used.
Some mediators will begin mediation in a caucus and conduct most of the mediation that way, while others will only use a caucus in specific instances. Still, a good mediator will evaluate the needs of the parties and the overall feel of the mediation when they decide to move to a caucus.
Understanding what caucuses are, where within the mediation process they fit, why a mediator may use them, and the benefits and issues with using caucuses will help determine if a caucus-based mediation will be the best option for the parties.
Caucus Mediation Defined:
Caucus mediation is the process of resolving a mediation through caucuses, which are individual meetings between the mediator and the parties. Caucuses keep the parties separated and talk to the mediator rather than each other. When this happens, the parties will often give the mediator their offers to present to the other party, which the mediator will then take to the other party.
The process is sometimes called shuttle mediation because the mediator will “shuttle” the offers back and forth. Additionally, this method adds another layer of confidentiality to the mediation. The mediator can only relay information from one party to the other if permission is given by the party that shares the details.
This process is effective when the parties are at a stalemate because it encourages the parties to communicate more openly with the mediator, hopefully allowing the mediator to gain some understanding of the issues, the underlying interests, and the ways that the parties need the negotiations to move if they would like to settle.
Caucuses are the opposite of joint sessions or sessions where the parties sit together in the same room and negotiate with the mediator present. These sessions will usually occur at the start of mediation and again at the end once the parties have reached an agreement. Outside of this, the mediator can choose to continue joint sessions or can bring the parties back to joint sessions when needed in the mediation.
Some mediators will conduct the entire mediation through a joint session, stressing the collaborative spirit that is often found when the parties are in the same room working on their issues together. However, continuous joint sessions do not allow for the same openness and discussion with the mediator they can have in a caucus.
There are ways to achieve the same results and encourage the parties to work with the mediator and each other. Still, this type of mediation may not work for every situation, so a caucus is an option.
Mediation Process Overview:
To best understand a caucus, it can be helpful to know where in the mediation process a caucus will fall. Typically, a mediation will follow the steps below.
- Preparation: The parties and the mediator will prepare for the mediation ahead of time. They will look over the issues, research the legal implications, and understand what may need to happen to achieve a settlement.
- Opening Remarks: Usually, the mediation will begin with the mediator giving an opening statement explaining the process and highlighting any important rules that will need to be followed. The parties will then have time to provide an opening statement to outline the issues as they see them and what they may need to move forward.
- Caucus: If a mediator uses caucuses, this is likely where they will be in the process. When the parties start the negotiating phase or when the parties need to speak to the mediator alone, they will likely move apart for some time to achieve these goals.
- Agreement: Once the parties have reached an agreement, whether it be to resolve the case or to agree that they will need to pursue other processes for resolution, the mediation will end with a deal, and the parties will go their separate ways.
Caucuses, when used, will often be the bones of mediation, as it is within these meetings that the parties will work with the mediator to move closer to a settlement.
Reasons for Caucus:
When a mediator is putting together a mediation plan, they may know what they would like to accomplish and how they would like to run the mediation. However, this will often shift when the parties are involved and as the issue moves toward the parties’ specific interests. There are several reasons that a mediator may choose to use a caucus, which includes:
- Style: Every mediator has a specific style that they use, which comes down to their mediation philosophy. Some mediators will see caucuses as a vital part of their mediation style, typically when they favor mediation which aids the parties in resolving the matter and relies more heavily on the mediator.
- Power Imbalances: Mediation is about resolving a dispute. Often, a dispute arises and fails to be resolved quickly because of a power imbalance. When this happens, it can be challenging for a mediator to have the parties working directly together because the party with more power will be able to control the situation. Separating the couples may help the mediator gain more from the party with less advantage and be able to help the situation remain neutral.
- Emotions: Similar to power imbalances, emotions may overrun a mediation. Feelings can be detrimental to the process but are frequent, especially in situations like divorce, where emotions might be overwhelming. Separating the parties helps them be less reactive and more proactive.
- Party Wishes: In some cases, the parties will want to separate themselves to best access the mediation process and the mediator. Usually, when the parties would like to add something to the process, the mediator will follow it unless it is not safe or highly detrimental.
Mediators may choose to use caucuses for various reasons that are not included here, but they are often able to sense when the parties need their own space and make that room.
Benefits of Caucuses:
Mediators will often choose to use caucuses for the immense benefits they provide. Some of the benefits of using caucuses include:
- Candor: The parties are more likely to be honest with the mediator when they are one-on-one than if they were speaking in front of the other party. Openness can be helpful for the mediator because even if they never share it with the other party, the mediator may be able to use the information gathered to encourage some creative ideas. The mediator will then be able to share their thoughts about a particular position and helps the parties make wise choices.
- Clarity: Many disputes revolve around an issue with how the parties see the issues and the resolution differ. When the parties can meet with the mediator, they have the chance to explain the situation and maybe see the case from the other side’s perspective instead of standing in their silo. The parties will have the opportunity to fully clarify the problems with the mediator without feeling overwhelmed or judged by the other party.
There are many other benefits that a caucus can bring to mediation, but these are some of the biggest highlights. It is also important to note that caucuses will often remove the collaborative spirit that may be present between the parties in a joint session. Hence, the timing and communication need to be perfect. Knowing when and where to use a caucus comes with practice, but caucus mediation will likely be the answer for some disputes.