Party-Directed Mediation: Pre-Caucus Empowers Party-Directed Joint Session


by Gregorio Billikopf, Jon Linden

November 2004

Conflict Resolution Practitioners find that there are numerous ways to approach mediation. These include Facilitative, Evaluative, Narrative and Transformative styles. By giving names to these styles, mediators can better communicate about the field and its various approaches.

It is the mediator’s judgment that dictates which style or tools are utilized in a particular case. While some mediators prefer to use the tools that are specific to a style, many mediators tend to borrow tools and techniques from any style when it is applicable to the situation at hand.

In this article, the authors discuss a relatively new style, Party-Directed Mediation. In developing a title for this style, Billikopf was inspired by the work of Carl Rogers (1951), who believed that clients came to therapy with their own solutions to their problems; solutions that would come to light and be discovered by his clients through empathic listening.

In this article, Billikopf and Linden talk about Party-Directed Mediation, give examples of where the technique is used, discuss the types of cases that seem to be most amenable to the use of this approach, and finally, discuss where the style can be of greater use to mediators.

Party-Directed Mediation strongly leans on 1) the use of the pre-caucus and 2) a client-directed joint session. Party-Directed Mediation also borrows from other styles in terms of approaches that help obtain the desired results. Any tool is not an end in itself, but rather forms part of the general approach.

In Party-Directed Mediation the concept is similar to that of Client-Centered Therapy, in that the parties’ roles are critical. The role of the mediator is primarily to be a good listener and coach. The parties take an increasingly larger role in the conflict management process, so that in the joint session they speak to each other rather than to the mediator. This approach is particularly useful where the individuals are more concerned about their on-going relationship than in solving a particular issue or challenge. The parties are given many of the tools they need to solve future conflicts.

The philosophy behind Party-Directed Mediation, is that individuals also come to mediation with their own solutions to their problems. The solutions they often cannot see because of the buildup of stress over time, as well as poor communication skills.

In the pre-caucus, the mediator meets with each party separately, and away from the other parties, before they are ever brought together into a joint session. The purpose of the pre-caucus is to help each party decompress enough to be able to see more clearly, and to prepare the parties to run their own agenda in the joint session.

These specific techniques are somewhat controversial to mediators (an informal study conducted by Billikopf in seminars shows that most people who have not had mediation training feel more comfortable with pre-caucusing than with the idea of bringing parties together without the benefit of a pre-caucus, while Linden has found that the practice of pre-caucus is often viewed by mediators and parties as inappropriate).

In the joint session, the interactive dynamic of a party-directed joint session, individuals are situated so they sit face to face (or, cara a cara) and address each other directly, rather than through the mediator. To enhance this delegation of responsibility to the individuals, clients sit facing, or directly across, from each other at one end of the table, while the mediator sits at a distance from both, thus mandating that both parties must address each other. Parties often have to be reminded that the mediator is not there to judge between the merits of the position of one party or the other, but to help the parties take responsibility to manage their own conflict. It is this sitting arrangement that does much to, in essence, force the parties to face each other and the conflict.

There are other potentially useful tools. For instance, in one mediation Billikopf found that having the parties read the mediation transcript after the mediation was completed, had an enormous positive impact on the parties. Billikopf hesitantly shared a copy of his book, Helping Others Resolve Differences with each of the parties involved in the conflict that he had taped and transcribed into the book. He did this half a year after the parties had come through a successful mediation. Both parties were in agreement that reading the transcript was bitter but useful medicine.

Over the last few months, Jon Linden and Gregorio Billikopf have exchanged thoughts on Party-Directed Mediation, and the resulting observations have made us feel that the topic should be perused by a larger audience. This conversation has revolved around a research paper and a book authored by Billikopf: “Contributions of Caucusing and Pre-Caucusing to Mediation” (2002), and Helping Others Resolve Differences: Empowering Stakeholders (2004). The authors, then, agree that different types of mediation cases may call for different approaches, and that each mediation has a “personality” of its own see Linden’s ”The Purist vs. The Toolbox” (2001).

Where To Use Party-Directed Mediation

Jon: Upon first approaching the topic of Pre-Caucus, most mediators start to bristle. In general, mediators find the concept of caucusing with one party or the other, before they have even begun, bordering on potential conflict of interest.

Gregorio: True, and the reason for this is that even in styles that are relatively party-directed, the literature shows that the mediator plays a huge role. For instance, in most mediations, the parties address the mediator rather than each other in the joint session. The mediator thus wields a huge amount of power.

Jon: While parties often start out talking to the mediator, a good mediator will redirect that so that each party is talking to the other party. A good rule of thumb is for the mediator to say 1 word for every 5 words the disputants say.

Gregorio: This may be a difference between actual practice and the literature. The literature shows parties tend to address the mediator, not each other.

Jon: When a mediator is trying to help resolve a conflict where the party is severed or has been injured (financially) the parties are very apt to say things to each other that are extremely inflammatory. In classic style mediation, it is the mediator’s job to immediately defuse this type of comment. There is great risk involved in the Party Directed Style in that the mediator is not positioned properly to control sudden outbreaks of anger and emotion.

Gregorio: The potential for inflammatory comments you mention is huge. It is true in many types of mediation. After all, the parties could not resolve the problem on their own. The Party-Directed Mediation approach prepares people to speak to each other in more effective ways. There are specific tests I use before I decide to bring people together. If people cannot say something positive about each other in the pre-caucus, for instance, it means they are not ready for a joint session where they can sit across from each other.

Jon: This sitting arrangement cara a cara is more appropriate when the parties not only know each other, but are obligated to have a close relationship into the future, because they are either neighbors, family or co-workers.

Gregorio: True. Mediations based on a single incident that needs to be resolved, by parties who normally do not interact with each other in a personal way, may lend themselves better to other approaches.

Jon: There are many mediations that do not allow for the time needed to properly prepare parties to use the “Party-Directed” technique, simply because parties need a significant amount of education in order to have the confidence that they can run their own agenda, without the direct intervention of the mediator.

Gregorio: While Party-Directed Mediation takes much time (from 2 hours to 16 hours, depending on the difficulty of the case), the time used for training normally constitutes less than 5% of the total mediation time. I have carried out this type of mediation with college educated professionals as well as farm workers, and they have both grasped on to the idea quickly and done an excellent job of managing their own joint session. Jon: In Community Dispute Resolution Mediation or Small Claims Court Mediation, where the time is limited to 30 to 60 minutes, it is not possible to use the full “Party-Directed” style.

Gregorio: Without a doubt, Party-Directed Mediation could not function with those time limits.

Jon: Parts of the style are already in use in other venues but perhaps they have not been recognized as such. The most common occurrence of a “Pre-Caucus” is in mediation for a Court system. Here the mediator usually is provided with the name of the case, and the names and phone numbers of the attorneys involved on the parties’ behalf. The mediator then has a “Pre-Mediation Conference” to schedule, but also to figure out what the case is about. Clearly, the pre-mediation conference is a pre-caucus.

Gregorio: Yes, this would be a type of pre-caucus, serving many of the same functions. For instance, just by being heard, the stakeholders can realize they are dealing with an intelligent mediator who seems to be fair. Or, can do some venting before getting to the joint session.

Jon: Perhaps an even better example of mediation that might even require a pre-caucus are “Land Use Cases.” In Land Use cases it is not uncommon to have as many as 25 parties/constituencies to the conflict, one or more of which may be government entities. Community members, developers, and environmentalists may all have a stake in the resolution. These mediations are often complex and require the mediator to be an administrative organizer as well as an informed mediator.

Gregorio: Besides getting educated, the mediator may also help the different parties improve their negotiation styles and not use terms that will offend the other party. When individuals call each other names or push certain buttons, their chances of coming to a positive resolution dramatically decreases.

Jon: Another area where the Pre-Caucus may be useful is in cyber mediation. It is almost always necessary to speak to the parties separately before starting a joint session. Sometimes, parties never speak to each other and all is done through caucusing.

Gregorio: When mediation takes place through caucusing and is not followed up by a joint session, it sounds like shuttle mediation. And of course, that is not what Party-Directed Mediation is about. The goal of Party-Directed Mediation is to get both parties talking to each other directly. I will be the first to admit that this is not always possible. Other approaches may be used in those cases where Party-Directed Mediation will not work.

We hope to hear from readers who would like to contribute to the Party-Directed Mediation model, whose purpose is to increasingly transfer both skills and responsibility to the parties and help them become better negotiators in the future.

References

Billikopf, Gregory Encina. Helping Others Resolve Differences: Empowering Stakeholders, University of California Agricultural Extension, 2004. http://www.cnr.berkeley.edu/ucce50/ag-labor/7conflict/

Billikopf Encina, Gregorio. “Contributions of Caucusing and Pre-Caucusing to Mediation.” Group Facilitation: A Research and Applications Journal, Number 4, Spring 2002, pp. 3-11. http://www.cnr.berkeley.edu/ucce50/ag-labor/7research/7res04.htm

Linden, Jon. “Mediation Styles: The Purists vs. The “Toolkit,” Mediate.com, 2001. http://www.mediate.com/articles/linden4.cfm

Rogers, Carl R. Client-centered therapy: Its current practice, implications, and theory. Houghton Mifflin Company, Boston, 1951, 560 pp.



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Biography





Gregorio Billikopf Encina is a Labor Management Farm Advisor with the University of California. His agricultural extension research and teaching efforts have focused on such topics as employee selection, compensation, performance appraisal, discipline and termination, supervision, interpersonal relations, conflict resolution, and negotiation skills.


Jon Linden is a Mediator, Trainer and Business Consultant. He holds an BS in biology and an MBA, both from Lehigh University in Bethlehem, PA. Jon spent 20 years in the Food Service Distribution business, where he was the COO and Sr. V-P of a Distribution Center of a major Fortune 500 company in the New York Metropolitan area, before becoming an independent consultant and Mediator. His responsibilities included Human Resources, Labor Relations and many other functions. He was the chairman of the company internal Ethics Committee for 6 years. Jon is a contract mediator for the Federal Equal Employment Opportunity Commission (EEOC) and mediates for the Superior Court system of the State of New Jersey, as well as for private clients. He is the President and Founder of Proactive Intervention, L.L.C. and an Accredited Professional Mediator (APM) for Civil/Commercial Mediation by the New Jersey Association of Professional Mediators.




Comments



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 Gregorio Billikopf,   Modesto CA  gebillikopf@ucdavis.edu      11/15/12 
 Party-Directed Mediation alive and well 
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Dear Neil: Many thanks for your comments and the invitation to say a little more about Party-Directed Mediation (PDM). I am thrilled to report that we continue to make refinements and learn new things to make the process even more effective. Interested readers may download a free copy of the second edition of the book in English (Google Party-Directed Mediation). The third edition of the book in Spanish is now in press, and the second edition may be downloaded from my page (Google Mediación Interpersonal). Indeed, I agree that PDM is centered squarely in the transformative end of the continuum. Having said that, the parties are challenged during the pre-caucuses. Increasingly, we are using the small hammer approach to challenging. This means that individuals are challenged very gently and then we permit time to promote the fermentation of positive feelings. Best, Gregorio bielikov@yahoo.com
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 Neil Donnelly,   Kingston,ON. Canada  neildonnelly@cogeco.ca      11/02/12 
 Party-Directed mediation 
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I have just 'rediscovered' this 2004 article in my archives while researching various mediation approaches. In my experience with workplace mediation I can confirm favourable results with pre-caucus meetings and have nothing negative to report. Reflecting on the spectrum of mediation approaches ( models,styles) I would place Party-Directed mediation, with its focus on the parties themselves taking increased involvement, near the Transformative Model on the spectrum, in so far as they both subscribe to 'following'rather than 'leading' the parties in addressing their dispute/conflict. I am interested in what feedback and continued results the authors have received.
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 Gregorio Billikopf,   Modesto CA  gebillikopf@ucdavis.edu      05/17/05 
 Update on Party-Directed Mediation 
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Party-Directed Mediation is an approach that seeks to empower each party: to offer contenders negotiation skills that will help them direct the resolution of the present conflict and increased ability to deal with future conflict. As people become more talented negotiators, they tend to deal more effectively with conflict. The two most important elements of party-directed mediation generally include 1) a meeting between the mediator and each of the parties prior to the joint session (in a pre-caucus or pre-mediation) and 2) a joint session where parties face each other, and speak directly to each other rather than through the mediator. In some instances, the pre-caucus may be so effective that parties go on to solve their conflict without a mediator. In fact, most people solve most conflicts they face without a mediator. There are times, however, when mediators are very much needed. Whenever people speak about empowering the parties, there seems to be quite a negative—if not defensive—reaction among some mediators and scholars. This resentment is partly justified. Those who promote party empowerment sometimes imply that such an approach is better than other mediation styles. I can think of conflicts where I simply wanted the problem to go away. Such was the case, for instance, when I had long ago discarded proof that I had paid for car insurance coverage during a Sabbatical in Chile. A year and half later I got a nasty letter from a collection agency. This was the first and only note forwarded to me. It was hard dealing with this situation from so far away. You can believe I was relieved when one of my brothers, who lives in Chile, contacted the insurance agency and played mediator between us. I hardly new the people involved, and had no interest in mutual validation, transformative opportunities, or the like. There are other types of conflicts, especially those of an interpersonal nature, or those that involve people who will continue to live or work or interact, that can greatly benefit from party empowerment. This is when party-directed mediation can play a big role. This does not mean that the mediator has nothing to say or contribute. There are large portions of the pre-caucus where, indeed, the mediator mostly listens through an empathic listening approach. This active listening approach was developed by Carl Rogers and best described in his book, Client-Centered Therapy. But there is also time for the mediator to help prepare each party to become a more effective negotiator. When the parties arrive at the joint session, they face and talk to each other. There are specific questions the mediator can ask the parties before bringing them together, to find out if they are indeed ready to face each other in such a direct manner, and do so in a civil way. More harm than good can take place when parties are not ready for the joint session, and use it as a safe ground to simply insult each other further. The concept behind Party-Directed Mediation, then, is that to the degree that the case lends itself to it, and the individuals wish to spend the time and acquire the skills to become more effective negotiators, that they can be empowered to do so. Just as people today are more likely to ask for a second opinion when it comes to their health and doctor’s recommendations, there are those who wish to have a greater hand in solving their own conflicts. Some cases may involve a little bit of empowerment, while others almost complete empowerment. Some cases, such as in some victim-offender mediation, may take months of preparation and baby-steps to help the parties come together into a joint session where they face and speak to each other. Other cases, as we have said, are solved by individuals after a friend provides a good listening ear and they gather the confidence to face the other party on their own. Gregorio Billikopf, 17 May 2005
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