The typical mediation begins with a joint session in which all parties and their counsel participate. Immediately thereafter the mediator separates the parties into caucuses and begins a process of shuttling back and forth between them until the mediation is completed. Most people find the caucus to be a safe and comfortable environment, in which they can talk candidly with the mediator. It also allows them to transfer to the mediator the sometimes unpleasant task of communicating further with the opposition.
Given the general acceptance of the caucus model many people are surprised to learn that it is not the only way to mediate. In fact there are some mediators who use caucuses only sparingly and other who do not use them at all. Instead they prefer to conduct extended joint sessions in which the mediator facilitates a full discussion of the issues by all participants and encourages them to bargain across the table until an agreement is eventually reached.
Why the difference in approach? There are a number of reasons, but the most common explanation is probably that the caucus can easily be misused. Many people come to mediation feeling that their task is to persuade the mediator in caucus that they are right and that the opposition is wrong. Assuming that they can accomplish that goal, they expect the mediator to sell their case to the people in the other room. The problem here, of course, is that the mediator is obligated to remain neutral and cannot become an advocate for one side. Another disadvantage of the caucus model is that the parties are depending primarily on the mediator to explain their case to the opposition. Since the mediator knows far less about the case than the parties, this method of communication often proves to be inefficient and quite time-consuming.
Every case presents its own set of problems, and it is unwise in my view to have preconceived ideas about the use of caucuses. Some cases require extensive caucusing simply because the parties cannot communicate effectively without the use of an intermediary. In all cases it seems that caucusing is helpful at some point so that the mediator can engage in devil's advocacy, reality-testing, and case evaluation on a confidential basis.
It is often profitable for the mediator to caucus with each party before the joint session as well as afterwards. By hearing first from each party the mediator can be better prepared to guide the participants thorough a productive joint session in which they present their points of view without creating further animosity.
MICHAEL P. CARBONE is a senior mediator who has also served as an arbitrator and court-appointed referee. His dispute resolution practice has been built over a period of more than 25 years and covers a wide range of fields. His exceptional combination of transactional and litigation experience enables him to handle complex litigation and other challenging cases.
Michael resolves business and commercial cases, real estate disputes, employment claims, construction claims and defect cases, estate and trust matters, insurance issues, legal malpractice, corporate and partnership disputes, and personal injury cases. In his capacity as a court-appointed referee he has undertaken a wide variety of responsibilities, including sales and appraisals of real property, and the adjudication of trust accounting and administration matters.
He is a member of numerous dispute resolution panels, including the National Panel of Arbitrators of the American Arbitration Association. He is also listed on the mediation and discovery facilitation panels of several Superior Courts.
He is a founder and past president of The Mediation Society, and a member of many other professional organizations, including the Academy of Court-Appointed Masters, the Dispute Resolution Section of the American Bar Association, and the Association of Business Trial Lawyers.
Michael is a frequent author and speaker on alternative dispute resolution issues. He publishes a monthly newsletter entitled "Resolving It" which provides timely advice on strategies for successful mediation and discusses current issues, such as reforming the commercial arbitration process and mediating e-discovery.